Internet Piracy

Says "Best Practices" Fall Short of Combating Online Infringement

Google, Microsoft, Yahoo and AOL and other companies that manage advertising networks unveiled a set of voluntary “best practices” on combating copyright infringement, a set of standards to follow as studios and record labels urge them to cut off the money supply to online piracy.

But the MPAA is indicating that the set of “best practices” are too weak.

In a statement issued shortly after the White House unveiled the ad network agreement on its website on Monday, MPAA chairman Chris Dodd called it “an incremental step forward that addresses only a narrow subset of the problem and places a disproportionate amount of the burden on rights holders is not sufficient.”

Dodd added that “absent meaningful proactive steps by players in every sector — advertisers, ad agencies, ad placement services, online ad exchanges and rights holders — the results will be similarly incremental.”

But with the prospects dim for Congress passing any type of major anti-piracy legislation, the guidelines reflect the most recent thrust of fighting copyright infringement: Voluntary agreements, including those that are aimed at choking off the money supply to sites that traffic in pirated content.

Copyright holders have long complained that sites thrive on pirated content, enabling them and even enriching themselves through the sale of advertising against the infringing material.

The “best practices” call for ad networks to respond to notices from copyright holders, and to post a contact person for receiving complaints. The ad network will then “perform and appropriate investigation into the complaint,” including whether the website has a direct contract with the site. The ad network then may request that a website no longer sell counterfeit goods or engage in copyright piracy, or it can cease to place ads on the site or pages within the site, or even remove the site from the ad network. The networks also will consider “any credible evidence” by the accused website that it is not engagaing in piracy.

But the set of “best practices” make clear the limitations that the ad networks have in policing infringement. It makes clear that the set of standards cannot be used to show the networks have legal liability, and that it is not a step toward imposing a duty on the network to monitor online piracy. It also makes clear that the websites at issue are those that are “principally dedicated” to online piracy, and have “no substantial non-infringing uses.”

“The sale of counterfeit goods and copyright piracy are issues Ad Networks take seriously, and Ad Networks have policies and practices in place to address this problem,” the ad networks said in a statement outlining the “best practices.” “Rights holders are in the best position to identify and evaluate infringement of their intellectual property. Therefore, the Ad Networks agree that without specific, reliable notices from rights holders, Ad Networks lack the knowledge and capability to identify and address infringement.”

Other companies that have signed on to the voluntary agreement include 24/7 Media, Adtegrity, Condé Nast and SpotXchange, along with the Interactive Advertising Bureau.

Susan Molinari, Google’s vice president of public policy and government relations, said in a blog post on Google’s site that “by working across the industry, these best practices should help reduce the financial incentives for pirate sites by cutting off their revenue supply while maintaining a healthy Internet and promoting innovation.”

Fred Humphries, VP of U.S. government affairs for Microsoft, said that “an appropriate notice-and-takedown system – that requires rights holders to identify specific instances of infringement and online services to respond promptly and appropriately to such notices – can address infringement while still respecting critical values such as fair use, privacy, free speech and the freedom to innovate.”

The “best practices” outline the specific information that copyright holders should include in asking ad networks to take action against an infringement site, including contact information for a website. Content holders, however, have long complained that they are at a disadvantage because often such a website owner is overseas, or it is hard to discern who is even running it.

Cary Sherman, CEO of the Recording Industry Assn. of America, said that the “real test will come as these practices are implemented, and whether they have a demonstrable impact. We will be monitoring closely.” He cited businesses such as WhiteBullet and Veri-Site that provide “intellectual property risk assessments” so that companies can decide whether they want to do business with a website.

Dodd urged the White House, via the intellectual property enforcement coordinator, Victoria Espinel, to “continue its leadership and convene a meaningful and transparent multi-stakeholder process.” In a report last month, Espinel urged content companies and search engines to work toward voluntary agreements, along with other entities like domain name registrars.

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