Hollywood, Big Tech Debate Who Should

“Safe harbor” provision of the Digital Millennium Copyright Act among the most contentious of issues

The federal government shutdown put much of Washington at a standstill, but lobbying goes on. And when it comes to Silicon Valley and Hollywood, what clearly hasn’t slowed is the ongoing debate over who should police the Internet for piracy.

The latest chapter is an upcoming Dept. of Commerce hearing on a long-in-the-works green paper on proposed copyright policy for the digital age. The U.S. Patent and Trademark Office, which is organizing the hearing and has been operating on fee reserves to stay open, had aimed for an Oct. 30 hearing but moved it to Dec. 12 to avoid complications from the shutdown.

Among the most contentious of issues is the “safe harbor” provision of the Digital Millennium Copyright Act, which was crafted in 1998, when Google was still in its infancy and social media meant throwing a party to watch the “Seinfeld” finale.

The safe harbor provision allows Internet providers, search engines and other tech firms to escape liability when users post pirated content on their platforms, provided such content is promptly removed when providers get a takedown notice, or if they are otherwise warned by some kind of “red flag” that indicates infringing activity.

This safe harbor provision is, generally speaking, something Internet providers and search engines don’t want lawmakers to touch. While providers may complain that they are inundated by takedown requests — Google says it receives more than a million each week — to put the provision on the table risks ending up with something that saddles Internet sites with additional liability.

In fact, when the green paper was unveiled, Michael Beckerman, president and CEO of the Internet Assn., a trade group formed in 2012 that includes Google, Facebook and Amazon among its members, said existing law works very well. In a statement to Variety, he said that the DMCA “continues to fulfill its intended purpose of facilitating the growth and development of the Internet and the Web.”

In contrast, Hollywood and lobbying orgs representing other content creators complain that the safe harbor provision forces them into playing endless “whacka-mole”; even after enlisting their own monitoring services to find infringing content and send out takedown notices, they say piracy is still growing.

While Beckerman warned that the green paper would be used by some interest groups as a call for new laws addressing online infringement, that prospect seems unlikely, not just because of the government shutdown, but because of skittishness among lawmakers to start anything like the unprecedented protest that sidelined the last major piece of antipiracy legislation, the Stop Online Piracy Act.

House Judiciary Chairman Bob Goodlatte, R-Va., has launched a series of hearings with an eye toward revising copyright laws, but that process could take years, and undoubtedly would be contentious when and if it comes to revisiting the DMCA. The authors of the green paper recognized this, and have proposed that rather than pursue legislation, the tech and content industries should come up with their own set of “best practices” for identifying takedown notices.

That’s easier said than done, of course. Google and others have had individual conversations with the studios; they are in business with most of them. But when it comes to hashing out a broad voluntary agreement across industries, there are, tellingly, no serious discussions.

Sherwin Siy, VP of legal affairs at the public interest group Public Knowledge, said via e-mail that best practices agreements can be a “big help,” as they can “inform players what is and what isn’t useful to the other side, and provide some guideposts for dealing with a complex situation.” But there can be drawbacks, he noted, as when there are not methods for redress and appeal. The problem is that “complaints of abuse or mistake get the runaround.”

Google has argued that it has been prompt in responding to takedown requests — 57 million last year, with an average response time of less than six hours, the company said — and that it has been proactive in removing ad services to sites that violate its copyright policy. As for not coming to the table, Beckerman notes that the upcoming hearing on the green paper will be a “multi-stakeholder dialogue.”

It remains to be seen whether it might also be yet another D.C. forum that features much talk, with little action.

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