Your Law Harbors Pirates, Guild Prez Tells Senators

Scott Turow launched his legal thriller career with Presumed Innocent. But his testimony before the Senate on piracy, in his capacity of President of the Author’s Guild, could have been called J’Accuse. What he was accusing Congress of was enabling copyright piracy to destroy literary and artistic creativity in the United States.

Turow had been invited to enlighten lawmakers about the devastating effect of the Digital Millennium Copyright Act, a 1998 piece of legislation designed to punish digital thieves.  Tragically (we use this term deliberately), a provision of DMCA lets criminals off the hook, with the result that authors and other legitimate copyright owners stand by helplessly as these larcenists dance around the ruins of their labors. (See Takedown Notices: Antipiracy Weapon or Exercise in Futility?)

The DCMA, according to Wikipedia, “criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works.”

Well and good. But powerful Internet service providers lobbied for an escape hatch called “Safe Harbor”, which says that if an ISP is notified by a copyright owner that that ISP is carrying infringing or allegedly infringing content and promptly removes or blocks access to that content, the ISP does not incur liability.

That’s the theory. In practice, pirates plying this safe harbor make it almost impossible to get ISPs to take down stolen files.  What is worse, the fileswappers and hijackers are being egged on by Information-Wants-To-Be-Freeists, counseled by misguided libertarians and pampered by do-gooders whose pockets have never been picked. To hear these pilferers whining about being harassed by legitimate copyright owners, you have to wonder who is the victim of whom (See Is This Watchdog Guarding the Bad Guys?).

That’s the background for Guild President Turow’s devastating testimony before the Senate, which finally considered the trillion dollar piracy cesspool to be worthy of its attention.  Just a week before, he and two Guild colleagues had run a clever op-ed piece in the New York Times speculating Would the Bard Have Survived the Web? But on this occasion he was deadly grim. For a full transcript of Turow’s testimony you may click here. Here are some extracts.

“After 300 years as one of history’s greatest public policy successes,” he told the lawmakers, “copyright is coming undone. As we meet here this morning, our well-intended policy toward copyright online is undermining our virtual and physical markets for creative works. That policy is in desperate need of update. The Digital Millennium Copyright Act’s ‘safe harbor’ for online service providers has turned out to be an exploitable gold mine for unscrupulous online enterprises. That safe harbor allows these rogue enterprises to profit from services that encourage and conceal the trafficking in stolen books, music, and movies, while disclaiming responsibility for that illegal traffic. The DMCA safe harbor has turned copyright’s incentives inside out, encouraging massive, global investment in piracy technologies and services…

“We have, inadvertently and with the best of intentions, instituted a policy that not only tolerates, but encourages investments in technologies and services that undermine our markets for creative work. We have, oddly but unmistakably, created the ideal environment for nurturing an innovative, global, networked industry that directly profits from trafficking in stolen books, music, and movies. In a digital age, where tipping points are always close at hand, the pirate economy can subvert an industry in a heartbeat…

“One is tempted to call it a vast underground economy, but there’s nothing underground about it: it operates in plain sight, as I will describe. Money clearly suffuses the system, paying for countless servers, vast amounts of online bandwidth, and specialized services that speed and cloak the transmission of stolen creative work. Excluded from this flow of cash are the authors, musicians, songwriters and the publishers who invest in them. The only benefit to the individual author is a parody of a benefit: that the work of the author will be better known.”

Turow offered five recommendations for reversing the assault on copyright:

1. Make online file-sharing service providers liable for facilitating the trafficking in stolen books, music, and movies if they frequently host and distribute stolen creative works or provide services that regularly facilitate the secret or rapid transmission of stolen creative work.
2. Require online file-sharing service providers to register an agent for service of process for copyright infringement actions with the Copyright Office as a condition to accepting credit card payments from the U.S. or ad feeds from U.S. online advertising suppliers.
3. Remove the DMCA safe harbors for online and Internet service providers that provide routine access to online file-sharing service providers that a federal court has found guilty of Facilitating the Trafficking in Stolen Books, Music, and Movies.
4. Remove the DMCA safe harbors for online and Internet service providers that provide routine access to online file-sharing service providers that have not registered an agent for service of process for copyright infringement actions and for which the Copyright Office has received at least 50 DMCA take-down notices.
5. Ensure that new legislative action can keep pace with developing technologies.

We’ve never been ones for urging anyone to write their congressperson, but desperate times call for desperate measures.  Write your congressperson.

Richard Curtis

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One Response to Your Law Harbors Pirates, Guild Prez Tells Senators

  1. Rowena Cherry says:

    Frankly, I thought Turow was a bit weak. There’s some good stuff in OCILLA, that just requires some enforcement and some tweaking.

    For instance:
    Quote ” An OSP must “not receive a financial benefit directly attributable to the infringing activity” to qualify for § 512(c) protection.”

    We need to add the other side of the coin:

    Suggestion
    “An OSP must not PROVIDE a financial benefit directly attributable to the infringing activity” to qualify for § 512(c) protection.”

    FILESONIC and other OSPs pay a bounty of up to 3 cents per illegal download of a “file” hosted on their site ($35 per 1,000 downloads).

    IMHO, if they are going to pay someone, they ought to be responsible for making sure that the content does conform to the letter of the law and to their TOU/TOS.

    When you consider that their incentives begin with thousands of downloads per e-book or movie stored on their site, it’s not so unreasonable for them to take a look at what is attracting a thousand or more downloaders.

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