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White House Issues New Plan to Curb Piracy

Plan Urges 'Voluntary Agreements' With Search Engines

The White House will encourage search engines, cyberlockers and domain name registrars to come up with voluntary agreements with Hollywood and other industries to curb online piracy of movies, TV shows and music, as the prospects for future significant anti-infringement legislation on Capitol Hill have stalled.

The efforts by the administration to reduce infringement were outlined on Thursday in a strategic plan released by Victoria Espinel, the White House’s Intellectual Property Enforcement Coordinator, who has been dubbed the “copyright czar.”

Espinel’s report indicated that the U.S. Patent and Trademark Office would study the effectiveness of voluntary agreements that are now in place. This includes a recently launched “copyright alert” system that the movie and record industries launched along with major Internet providers earlier this year, in which consumers who repeatedly download pirated content are sent warnings, with the possibility of having their service slowed after the 5th or 6th such notice. The system has been dubbed “six strikes,” although users do not face having their service shut down altogether if they continue to access pirated content.

Nevertheless, even as agreements have also been reached with credit card companies and ad firms, as a way of choking off the flow of money to pirate sites, reaching a deal with search engines is a high hurdle. There is still considerable friction between the MPAA and the Recording Industry Assn. of America and search giant Google, and any agreement would probably be a long time coming.

To that end, Espinel’s report makes a point of asking content creators, like studios and record labels, to establish their own set of “best practices,” or voluntary standards that the industry should follow in pursuing infringement claims. In a conference call with reporters, Espinel said that the administration has been asking the tech sector to establish such guidelines over the past few years, but “we think it is important for rights holders to enter in to best practices as well.” She suggested that such a move would help in negotiations. “We think it is important that everyone be at the table working together,” she said.

Tech firms have complained that some content creators have engaged in copyright abuse, such as the filing of frivolous claims or of seeking takedowns of content for which they do not own the rights. Others have complained that obtaining the rights to certain types of music and other content is cumbersome given the instant demands of the digital age.

Showbiz trade associations have been pursuing voluntary agreements after the experience with the Stop Online Piracy Act, a major piece of legislation to combat foreign piracy sites that was sidelined in Congress last year after a storm of protest from Internet users.

Cary Sherman, CEO of the RIAA, said in a statement that “just as we are asking others to redouble their efforts to build a better online marketplace for users and creators alike, we recognize that we have an obligation to be constructive and examine steps we can undertake to help achieve that end.” He cited an agreement that labels and music publishers reached last week to free up more music for licensing, via a system of “micro-licensing” for ancillary uses, like corporate retreats or wedding videos.

But he noted that so-called “rogue” websites continue to be displayed in the first page of search results, “and this new White House report is a reminder that policymakers care about this issue and expect meaningful progress.”

Jean Prewitt, president and CEO of the Independent Film & Television Alliance, said that, when it comes to establishing “best practices,” “it makes sense to begin the conversation among the sector itself.” For instance, there are divergent ways that studios and production companies identify infringing content.

While much of the strategic plan focused on enforcement, including coordination activities among federal agencies, the plan also notes that the U.S. Copyright Office is studying the feasibility of small claims courts for copyright disputes, given the expense involved for such professionals as photographers and illustrators to pursue claims for infringement of their works. The Copyright Office expects to unveil a plan in the fall of 2013.

Prewitt said that an issue for independent filmmakers is the cost of pursuing claims, as well as enforcing copyright when a project is still in release.

Yet “you don’t want the process to short circuit the legal protections that creators have and the legal protections the public has,” she said.

Another area cited in the report has to do with “fair use,” the term for when copyrighted content can be used legally without an owner’s permission. It’s been the subject of a great deal of litigation in recent years, along with plenty of misperception. The plan calls for the Copyright Office to summarize current law and provide more guidance to artists “seeking to apply the law to their own situations.”

The plan also calls for the federal government and the FBI to work with the Internet Corporation for Assigned Names and Numbers, or ICANN, to make sure that new “top-level” domain names do not become “new venues” for infringement.

The plan also calls for increasing transparency as new policy is created to fight infringement. The negotiation of international trade agreements has come under criticism from public interest groups for being too opaque a process.

Espinel also indicated that the administration would seek increased efforts to engage law enforcement agencies in other countries to pursue action on piracy and counterfeiting. The plan also calls for  calls for an annual study of the economic impact of “intellectual property-intensive industries” on the economy.

Chris Dodd, the chairman and CEO of the MPAA, said in a statement that “as the administration points out repeatedly throughout the report, all involved parties — from ISPs to payment processors to ad networks to search engines — share responsibility to ensure protection of creative work.”

The Center for Copyright Information, which oversees the copyright alert system, has yet to release exact figures on how many e-mails have been sent to users warning them that they are accessing infringing content. But according to Prewitt, the “overall stats are that very. very few users have gone past three notices,” and there has been no litigation to date.

Update: According to CCI, reports of notices are still unconfirmed.

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