nology, which emerged within a year
of the DMCA’s passage, and lacks the
sustained attention span or proclivity
to adapt legislation in a transparent,
broad-based, or systematic manner to
deal with new piracy challenges. At the
same time, the DMCA’s ISP safe harbor
is showing its age.
Collaborative symbiotic initiatives
Legislation is but one means for
achieving collective action to address
problems that cut across multiple sectors of the society and the economy.
Private concerted action offers another
and potentially more effective and sustainable pathway toward surmounting
Internet governance challenges. Similarly, technological innovation in copyright enforcement systems can play a
critical role in improving the technolo-gy-content ecosystem. A key part of the
solution to the current challenges over
Internet policy relates to the perceived
goals of the Internet community. For
much of the past two decades, many
technology companies have been antagonistic toward or, at best, agnostic
about addressing piracy concerns.
This reflects several factors. Cyber-libertarians have advocated the effective abolition of copyright protection
on the Internet. The emergence of the
Creative Commons and open source
software blunt this extreme position.
There is little standing in the way of
creators pre-committing to sharing
their works. And although open source
software has made substantial inroads
into several key software marketplaces
(particularly those exhibiting network
effects), shared creative works have
had a much more modest impact.
Given the continuing popularity of professionally produced and copyrighted
works of authorship, the case for abolishing copyright protection on the Internet seems doubtful.
A more serious concern relates to
the fear that copyright protection may
be chilling technological innovation.
Yet the picture is mixed. The DMCA’s
safe harbors have significantly limited
platform innovators’ exposure to copyright liability. Furthermore, corporate
law’s limited liability regime provides
substantial insurance against crushing liability. The emergence of new
technology platforms (including some
that are highly parasitic) over the past
companies have been
or, at best, agnostic
decade suggests copyright liability
is not significantly dampening innovation. In fact, the argument can be
made that the equilibrium has tilted
toward too much piracy.
As legitimate Internet content distribution models have emerged, many
more technology companies stand to
gain from consumers accessing content from legal sources. Authorized
vendors—such as iTunes, Amazon,
Vevo, Netflix, and Spotify—experience
greater traffic and commerce to the extent that illegal alternatives are harder
to access. ISPs can better manage their
traffic when consumers access content
from legitimate sources. As ISPs further integrate cable and content businesses, they will see even greater direct
benefits from reduced piracy.
Notwithstanding the recent impasse over rogue Web site legislation, a quieter and more constructive
pathway has been in the works. In
July 2011, a group of major ISPs (SBC,
AT&T, Comcast, Verizon, CSC, and
Time Warner Cable) and leading content industry organizations (RIAA and
MPAA) entered into a Memorandum of
Understanding (MOU) to implement a
flexible Copyright Alert System to discourage unauthorized distribution of
copyrighted works.a The signatories to
this MOU committed to implement an
escalating system of alerts in response
to alleged infringing activities: an Educational Step Copyright Alert; an Acknowledgment Step Copyright Alert;
and a Mitigation Measure Copyright
Alert Step. The Mitigation Step can
a See Memorandum of Understanding (Jul. 26,
include a reduction in upload/down-load transmission speeds, a step down
to a lower-tier service, redirection to
a landing page until the matter is resolved, and restrictions on Internet access. The MOU provides for “warning
bells” along the alert steps as well as
an appeals procedure.
This graduated response system
provides a foundation for ISPs and
copyright owners to collaborate more
constructively in pursuit of a free and
less piracy-prone Internet ecosystem.
It builds a balanced enforcement system into ISP activities. As this experiment unfolds, the parties will be able
to learn more about the ecosystem and
how to adapt these techniques to better channel consumers into the legitimate marketplace.
A similar initiative produced the
Principles for User Generated Content Services,b which encouraged the
development and implementation of
effective filtering technologies for us-er-upload Web sites. Although Google
did not formally join this initiative, the
ContentID system that it implemented
for YouTube largely follows the UGC
Principles model. In March 2011, You-
ku.com, China’s leading Internet television company, joined the initiative.
This is a particularly encouraging development in light of concerns about
piracy in China.
Analogous initiatives could potentially address the roles that search engines, advertising networks, and payment processors play in enabling rogue
foreign Web sites and piracy-prone
cyberlocker businesses. Although it is
unlikely that such approaches will entirely bridge the divide between Internet companies and traditional content
owners, such collaborations provide
the most promising foundation for
incubating and testing designs for surmounting the dynamic challenges of
Internet governance and forging collaborative relationships that can address new problems as they emerge.
b See Principles for User Generated Content Services; http://www.ugcprinciples.com/.
Peter S. Menell ( email@example.com) is the
herman Phleger Visiting Professor of law (2011–2012) at
Stanford law School and the robert l. bridges Professor
of law and director at the berkeley center for law &
technology, University of california at berkeley School