The Looming Battle

In today’s print version of Variety is my story on the latest development in Hollywood’s effort to fight piracy: Studios, record labels and labor groups have sent a list of what they’d like to see the White House do. (You can read the story here).

But there’s another development that may very well highlight the friction between the entertainment industry and the Internet world: It’s the current effort to establish an international trade agreement, called the Anti-Counterfeiting Trade Agreement, to crack down on piracy, particularly online copyright infringement, worldwide.

A draft of the agreement was leaked in France, and according to Wired, it for the first time requires that Internet providers be held responsible when their customers download infringing content, unless they adopt a reasonable policy to address it. The suggested means is a “three-strikes” policy, in which repeat infringers can have their service terminated.

Hollywood has been in favor of such a “three-strikes” policy, but it has been frustrated in getting Internet providers to cooperate with such an effort. Current law does not prevent it, but, as Wired points out, the Digital Millennium Copyright Act holds those providers responsible for infringing content only if they fail to remove it at the request of the copyright holder. In essence, Internet providers would bear more responsibility, and they aren’t exactly thrilled about the prospect.

Ari Emanuel, among others, has been pressing Obama administration officials for a “three-strikes” law, but has admitted it is likely to be a battle with Internet firms. Those opposed to such measures, including some consumer advocacy groups, fear that it will give Internet firms too much power, particularly with determining what material is a “fair use” of copyrighted content and what is not. And they also charge that this is essentially a form of “policy laundering.” In other words, if the U.S. gets a treaty passed, the pressure will be on Congress to change the Copyright Act.

Trade policy is famously arcane, difficult to understand and, to all but the most wonkish, just plain dull. But this is one aspect of it that may be at the heart of efforts to combat piracy. From the standpoint of many in the entertainment industry, grappling with what can seem like a futile effort to combat piracy, it is one of the few ways that actually stands a chance in putting a dent in copyright infringement, particularly world wide.

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