Way forward on piracy may not be political

Hollywood and its supporters are feeling something akin to a hangover following the sidelining of the Stop Online Piracy Act and a companion bill in the Senate.

It’s been just over a month since an Internet blackout called attention to the legislation, and an accompanying protest forced congressional leaders to put it on hold. Although emotions have been somewhat diffused, frustrated lobbyists and skittish lawmakers don’t seem in a hurry to jump back into the fray to try and craft a compromise.

The election year makes it even less likely that Congress will act on something if it appears the legislation could become a liability.

But that doesn’t mean that the problem of piracy will be off the radar of the average consumer. In fact, this spring, consumers will start to get a very clear message from the entertainment industry as it tries to curb online copyright infringement. Following a landmark agreement finalized last year with the studios and record labels, the country’s major Internet service providers, including AT&T, Cablevision, Comcast, Time Warner Cable and Verizon, will start sending out “copyright alerts” to users who illegally download copyrighted movies, music and TV shows. If users continue to access pirated content, they would face possible sanctions at a certain point that could include slower Internet speeds.

The agreement was reached last year without legislation — which begs the question of why at least some goals of the SOPA legislation couldn’t be achieved via a similar pact. The White House, which was critical of parts of the legislation, also said at the time that “this is not just a matter for legislation” and urged the sparring parties “to adopt voluntary measures and best practices to reduce online piracy.”

But that’s easier said than done.

The agreement for “copyright alerts” took almost three years to complete, and the biggest challenge may be just getting parties to the table. Cary Sherman, chairman-CEO of the Recording Industry Assn. of America, said that while agreements for “best practices” to combat piracy are in place with payment processors, and in the works with advertisers, search engines “have essentially declined to participate in conversations.”

Sherman, who played a major role in crafting the agreement for the copyright alerts, said that they are an “indication that if you want to make progress, you can.”

“We would love for it to be a model,” he said.

Markham Erickson, executive director of the NetCoalition, the association of Internet firms that opposed the antipiracy bills, said, “Search engines have been at the table and have created solutions on their own.”

He expects discussions of some sort this year but said that a “significant lack of trust between Hollywood and Silicon Valley” has to be overcome. “There needs to be more conversations so we can understand better where they are coming from and they can understand where we are coming from,” he added.

In the aftermath of the SOPA fracas, there is quite a bit of industry animosity directed at Google, not just for its opposition to the legislation and for what reps consider a misinformation campaign against it but for longtime gripes over how it ranks access to movies and TV shows in search results. Search engines objected to SOPA provisions — in which courts could order the disabling of hyperlinks — as too broadly written. Going forward, Erickson noted, they don’t want to be singled out as the “cause of the problem.”

“Picking out even one type of distribution system, and not having a comprehensive discussion, is part of what creates the distrust,” Erickson said. “There are multiple facets to the problem.”

Nevertheless, the Hollywood lobby is not taking to an alternative antipiracy bill embraced by many Internet firms, the Open Act, which would attempt to root out rogue websites through the International Trade Commission. Sherman says the legislation is “not a realistic alternative,” declaring that its provisions would be too weak.

And far from searching for a compromise, some Internet activists are turning to a new front: the Anti-Counterfeiting Trade Agreement, aimed at bringing some uniformity to the way that countries enforce copyright. Protests in Europe have put ratification in doubt in some Eastern European countries, but the U.S. signed the pact last year. Again, as with the SOPA protests, entertainment industry groups say activists are engaging in a misinformation campaign, particularly on a trade agreement that was significantly softened from its earlier drafts. Sherman points to stories of lawmakers thinking twice about cybersecurity legislation, worried that they will face the same storm of protest as with SOPA if they declare their support.

As big of a gulf as there may be, Sherman and other industry lobbyists talk of “reanchoring the conversation,” particularly after the government’s seizure of file-sharing site Megaupload.

“What happened a few weeks ago sort of reset the template,” Erickson said. “It is clear there will have to be unanimous agreement, and that it will have to be acceptable to all the stakeholders who are engaged on this.”

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