Innovation Policy Post

Certain industries who prioritize controlling their content expend considerable amounts of time and money on lobbying for legislation, such as SOPA and PIPA.  However, the RIAA, one of the most vocal supporters, allegedly conceded in a recently leaked report that the SOPA/PIPA “legislation [was] not likely to have been effective tool for music.”  So not only is there uncertainty as to the extent of the problem, given the many opportunities for online commerce, but there is apparently uncertainty by the RIAA itself as to the success of that legislative fix.

That same leaked report contained talking points on a “six strikes plan” for industry cooperation with Internet Service Providers (ISPs), which is also a potential threat to public use of the Internet, albeit by private entities.  The program will be run by the recently-created Center for Copyright Information (CCI), and was negotiated by ISPs and entertainment industry stakeholders, with input from enforcement offices of the Obama administration, and without the feedback of the public customers who would be affected by (and have no choice but to be subsidizing) this project.  The CCI has made admirable efforts toward having a relatively balanced advisory board, including Public Knowledge’s Gigi Sohn.  The board will work toward developing a tiered Copyright Alert System with steps including copyright education, acknowledgement, and mitigation measures, which according to the CCI’s Memorandum of Understanding [PDF] may involve “restriction of the Subscriber’s Internet access for some reasonable period of time.”  The program seems to effectively presume guilt rather than innocence, and allow for penalties from mere accusations of infringement.  This is concerning because the program seems to lack due process to deal with allegations of “infringement.”  Incentives appear skewed to penalize and potentially even disconnect Internet access first and ask questions second.  For more details, check out Sherwin Siy’s in-depth analysis, and Eric Goldman and Corynne McSherry’s critique of the program and how it was developed. 

Other countries already have three strikes regimes.  Yesterday, it was reported that France’s controversial three strikes agency, Hadopi, may be abolished.  Aurelie Filipetti, the French Government’s new culture minister, referred to the three-strikes penalty as “disproportionate,” and added:  “€12 million per year and 60 officials; that’s an expensive way to send 1 million emails,” which essentially seems to be the main outcome of the three-year campaign.  Filipetti said: “Hadopi has not fulfilled its mission of developing legal downloads.  I prefer to reduce the funding of things that have not been proven to be useful.”  Even after three years, there was apparently no evidence of reduction in illegal filesharing or increase in legal sales.

France’s experience should be instructive to U.S. efforts at a similar program.  In fact, Sohn has already written about this announcement and the impact it will have on the progressing U.S. efforts.  Advocates of industry-protecting legislation, and private measures like the CCI initiative, should rethink draconian enforcement measures given the dearth of evidence of harm, and the wealth of opportunities for artists to thrive online.  There should be more focus on developing and strengthening legitimate ways to profit on the Internet, rather than expending time and resources fighting alleged “piracy.”