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

many technology
companies have been
antagonistic toward
or, at best, agnostic
about addressing
piracy concerns.

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, 2011); http://www.copyrightinformation.org/ sites/default/files/Momorandum%20of% 20 Understanding.pdf.

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 ( [e-mail]) 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 of law.