DMCA Review II – Looking to foreign jurisdictions, when some answers are already here.

As we batten down the hatches to weather the present storm, streaming entertainment enters the foreground of our new and temporary reality in which we voluntarily circumscribe daily life to the confines of home. This is no time, of course, to fuss about media piracy per se. We have bigger fish to fry, but one must keep busy, and so on the subject of streaming entertainment, the Senate Judiciary Committee on March 10th held its second hearing in what will be a year-long review of the 1998 Digital Millennium Copyright Act. 

This time, the IP Subcommittee turned its attention to foreign jurisdictions and piracy. The thesis question was this:  How do other countries address piracy and what, if anything, can we learn from them?  Naturally, the EU Directive of 2019, especially Article 17, which was designed to incentivize the largest user-supported platforms to enter into license agreements, was discussed in both of the two-panel sessions. But from testimonies as oppositional as Stan McCoy of the Motion Picture Association and former Pirate Party member Julia Reda of the EU Parliament, I think it’s fair to say that all interests are sufficiently dissatisfied with the outcome of that legislation that it may not prove terribly instructive to U.S. lawmakers. 

What I did find compelling in the hearing was summed up during the second panel by Jonathan Yunger, CEO of Millennium Media, who said in Q&A with Senator Coons that, two things he’d ask to see in the U.S. would be site blocking and felony streaming. And if I were placing bets on the recommendations that will ultimately follow this review, I predict that the committee will find these two proposals highly persuasive. Interestingly enough, site blocking does not require a radical revision of the DMCA (if it requires any), and felony streaming does not implicate DMCA revision at all. 

Site Blocking is Effective and Already Intended by DMCA

As highlighted by law Professor Justin Hughes in Panel I, it is clear from the language in Section 512(j) of the DMCA that Congress intended to empower a court to order a service provider, even though it is not a party to a litigation, to cease providing access to infringing material as a form of relief to a plaintiff. Under this section, if a rights holder can prove that a given site is dedicated to infringement, the court is supposed to be able to instruct a Google or a Time Warner to block access to that site or sites. Yet, as Hughes points out, this already extant section of the statute has hardly been used. 

Economics professor Michael Smith testified that we now have a sufficient volume of data which demonstrates that blocking multiple pirate sites has the positive effect of driving consumers to legal platforms.  Additionally, Professor Hughes enumerated several of countries where we can see that site blocking neither disrupts a functioning internet nor chills protected speech. “Given the widespread use of this enforcement tool in other democratic societies,” Hughes stated, “it may be worthwhile for the subcommittee to explore why §512(j) has not been utilized.” 

I imagine the IP Subcommittee will heed this recommendation to review the historic inefficacy of section 512(j). After all, more effective site blocking would actually address myriad piracy problems at the same time with no effect upon the public interest, or in any way meaningfully amending the safe harbor provisions for service providers. For instance, more sophisticated and insidious access to pirated material through set-top boxes called “Kodi boxes” would be mitigated by site blocking because these infringing apps, loaded on these boxes, search for titles of filmed entertainment stored on foreign pirate site servers. Consequently, site blocking should substantially reduce the incentive to get into the illegal streaming game through the “box” model and, therefore, alleviate some of the burden on federal law enforcement to investigate these enterprises.  

Why Has 512(j) (i.e. site blocking) Not Been Used?

I do not claim to know all the answers to that question, but at least part of the answer comes down to the fact that internet industry and “digital rights” activists have fought, in both the blogosphere and the courts, to avoid compliance with even court-ordered injunctions to remove  or block access to content. Most prominently, perhaps, was Google’s defiance of the Canadian Supreme Court, which ordered sites blocked as injunctive relief for plaintiff Equustek whose IP had been stolen by a party marketing counterfeits on the sites at issue.

Or to highlight just how entrenched the industry’s misguided sense of responsibility is in this regard, the subcommittee could review the defense and supporting amici in Hassell v. Bird, in which Yelp! argued that by complying with an injunction to remove material, which had been judged unlawful by a court, this would “harm due process.” This was a profoundly absurd claim to come from a “no-fault” third party responding to a court order to cease facilitating harm to a plaintiff. Due process does not a apply to an unnamed, no-fault party—except apparently within the twisted strands of logic peculiar to website operators, who have historically assumed that it is their right to host, link to, and even monetize anything that ends up on their platforms. 

Site operators and their supporters, like the EFF, PublicKnowledge, and, at times, the ACLU, have endeavored to tie both courts and public perception into knots over one of the most basic forms of justice—injunctive relief by unnamed third parties—and it seems that correcting this error (i.e. making Section 512(j) mean what it says) would be short work for legislators. 

Felony Streaming is Controversial for No Good Reason

As I say, I was also struck by Mr. Yunger asking for felony streaming as a solution to piracy, which does not in fact require revision to the DMCA, but rather a change to the criminal code. As discussed in this post about the indictments against the operators of Jetflicks, streaming a “public performance” of a copyrighted work is still a misdemeanor, despite the fact that it is exactly how large-scale piracy is achieved today. In fact, nothing in the old bootlegging model, which is a felony, could come close to illegally streaming a movie or TV show to tens of millions of consumers, occasionally even preempting the official release of the project.

“Under this system, criminal streaming piracy, no matter the dollar amount it involves or the number of works affected, is de facto treated as a lesser crime than the illegal downloading or reproduction of the exact same content.” –Register of Copyrights, July 2019–

Some fairly outlandish fear-mongering has been employed in opposition to felony streaming proposals over the years. By “over-criminalizing” unlicensed streaming, the critics say, good-faith site operators could wind up in jail due to error or the unlawful conduct of their users.  But this scare tactic is contradicted by a few important realities, not the least of which is that we do not generally see good-faith site operators charged with misdemeanors either. 

To be charged with criminal copyright infringement, a defendant must truly be engaged in copyright infringement as a business enterprise. Nothing about elevating enterprise-scale, unlicensed streaming to a felony would change the burden of proof for filing criminal charges; it merely puts teeth in the law as a deterrent against launching in this kind of operation. Further, elevating illicit streaming to a felony does not alter the liability protections for good-faith service providers. 

The same principles would still apply to the “safe harbor” provision established for good-faith providers whose users upload infringing material.  Having said that, however, the incentive narrative needs to change to apropos Mr. Yunger’s testimony that his company’s films, in one accounting, had been viewed over 110 million times on YouTube. So clearly good faith alone is not getting the job done. 

Meanwhile, as CreativeFuture reported in a recent blog post, a new operation called Plex appears to combine the “Kodi box” piracy streaming model with a Napster-like twist such that users can “share” libraries they store on Plex servers—particularly if those libraries comprise bootleg files. If Plex is intentionally facilitating large-scale infringement through streaming from its servers,* its defense against an infringement charge would presumably seek to hide behind the technicality that its users are “directing” the uploading of files to the server space under user control. Hence, by more robustly criminalizing the act of streaming public performances, this would seemingly close a DMCA loophole without actually revising the DMCA. 

With regard to considering both felony streaming and a review of 512(j), the IP Subcommittee should assess the amount of disinformation and flawed legal arguments that have been deployed on these topics by various parties in the internet industry. For the better part of the last two decades these companies have consistently behaved as though the original intent of DMCA was always that they should do exactly they want—even in defiance of court orders. The members of the committee know very well that nothing could be further from the truth. 

© 2020, David Newhoff. All rights reserved.

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