Two major recent trends – access to broadband Internet communications and the availability of cheap storage for content --have driven a global increase in copyright piracy. Many associate internet piracy with illegal copies of music tracks. This is certainly accurate. But, as these trends progress, larger files including movies and television series have come under threat.
The impact of piracy on the media industries can be devastating. The Digital Music Report 20101 , recently released by the International Federation of the Phonographic Industry (IFPI), references a number o f studies that note the dramatic fall in sales of recorded music and conclude that the damage caused by illegal file-sharing is a major factor in the decline.
It is important to have some understanding of the legal background on this issue in order to understand how particular technologies or approaches could be legally employed to counter the problem.
Title II of the Digital Millennium Copyright Act (DMCA) of 1998 is known as the Online Copyright Infringement Liability Limitation Act ("OCILLA"). Understanding this portion of the DMCA provides some important legal context the debate and the possible solutions to deal with copyright theft on the internet:
“OCILLA” creates a safe harbor for online service providers (OSPs, including ISPs) against copyright liability if they adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to allegedly infringing material (or remove such material from their systems) if they receive a notification claiming infringement from a copyright holder or the copyright holder's agent. OCILLA also includes a counter-notification provision that offers OSPs a safe harbor from liability to their users, if the material upon notice from such users claiming that the material in question is not, in fact, infringing. OCILLA also provides for subpoenas to OSPs to provide their users' identity.2
In short, internet service providers (ISPs) are considered to be “off the hook”, as long as they have terms and conditions to deal with copyright theft when and where they become aware of it. These terms and conditions of use charge them with the responsibility to remove copyrighted materials from site and/or send DMCA notices requesting that the content be removed. DMCA notices can also be sent to individual users.
In practice, ISPs have sent out notifications to some infringers, but they are not imposing any sanctions at this point against their users if they do not comply. Presumably the reminder to users that the copyright holder(s) are free to subpoena the records identifying infringers when they have proof is threatening enough.
DMCA serves as the foundation to policy in this area of copyright law in many countries around the globe. However, the laws are more strictly interpreted and enforced in some other countries. South Korea, Taiwan, and France have actually begun regulating ISPs and requiring them to take certain action against infringers when identified. Court cases pending decision and draft legislation in other countries suggest that other countries may also be leaning in this direction as well.
Certainly, there are very important questions with regard to the legal aspects of this issue, and with regard to the culpability of the various parties involved. But, with the increasing difficulty of attacking the various and changing forms of internet piracy, including Torrent networks and file-hosting sites, it becomes increasingly evident that the protection of copyrights at the “backbone” level of the internet (i.e- by the companies that collectively own and operate the internet infrastructure) may be the most effective way to deal with the situation.3
While ISPs are not yet taking serious actions against many infringers, there are companies that specialize in the development of technologies and services designed to help protect stakeholders from copyright theft.
Based in Australia and the United States, IP-Echelon (http://www.ip-echelon.com/) is a company that provides anti-piracy solutions to the media industries and support to law enforcement agencies. We spoke with the company’s founder and CEO, Adrian Leatherland.
The company is not merely a web crawler software company. They monitor the transfer of client content from various “stations” across the globe, essentially mapping the infringement of content right down to the user.
The company will not only gather evidence and report on infringement for their clients, but they also help to connect their clients with the appropriate experts and law firms with the kind of experience necessary to deal with the infringement as the client sees fit. The company will also issue “take down” notices on behalf of their clients if desired when infringement occurs.
In 2009, the Independent Film & Television Alliance (IFTA) partnered with IP-Echelon to offer IFTA members complimentary anti-piracy services on a temporary basis. The iWatch trial program provides IFTA members with 1) internet piracy monitoring and reporting; 2) issuance of “take down” notices to have pirated movies removed from the internet; and 3) secure distribution of encrypted movie screeners via the internet to film critics and purchasers.
The demand for technologies and services that address the demand among media associations and companies, as well as individuals, is well justified. The success of the content creators and stakeholders will depend in large part on their ability to protect the rights to their work. IP-Echelon exemplifies the kind of company and technology needed to help meet these needs.
1IFPI Digital Music Report 2010, http://www.ifpi.org/content/library/DMR2010.pdf. Accessed on February 1, 2010.
3Schleimer, Joseph D., Protecting Copyrights at the “Backbone” Level of the Internet. UCLA Entertainment Law Review, Volume 15. Issue 2. Summer 2008. Link: http://schleimerlaw.com/Backbone%20Article--PUBLISHED%20BY%20UCLA%20July.... Accessed on February 1, 2010
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