Commentary by Richard Esguerra
We're not easily shocked by entertainment industry overreaching; unfortunately, it's par for the course. But we were taken aback by the wish list the industry submitted in response to the Intellectual Property Enforcement Coordinator's request for comments on the forthcoming "Joint Strategic Plan" for intellectual property enforcement. The comments submitted by various organizations provide a kind of window into how these organizations view both intellectual property and the public interest. For example, EFF and other public interest groups have asked the IPEC to take a balanced approach to intellectual property enforcement, paying close attention to the actual harm caused, the potential unexpected consequences of government intervention, and compelling countervailing priorities.
The joint comment filed by the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA) and others stands as a sharp contrast, mapping out a vision of the future where Big Media priorities are woven deep into the Internet, law enforcement, and educational institutions.
Consider the following, all taken from the entertainment industry's submission to the IPEC.
"Anti-infringement" software for home computers
There are several technologies and methods that can be used by network administrators and providers…these include [consumer] tools for managing copyright infringement from the home (based on tools used to protect consumers from viruses and malware).
In other words, the entertainment industry thinks consumers should voluntarily install software that constantly scans our computers and identifies (and perhaps deletes) files found to be "infringing." It's hard to believe the industry thinks savvy, security-conscious consumers would voluntarily do so. But those who remember the Sony BMG rootkit debacle know that the entertainment industry is all too willing to sacrifice consumers at the altar of copyright enforcement.
Pervasive copyright filtering
Network administrators and providers should be encouraged to implement those solutions that are available and reasonable to address infringement on their networks. [This suggestion is preceded by a list of filtering methods, like protocol filtering, fingerprint-based filtering, bandwidth throttling, etc.]
The entertainment industry loves widespread filtering as a "solution" to online copyright infringement — in fact, it has successfully persuaded Congress to push these technologies on institutions of higher-education.
But this "solution" is full of flaws. First, even the "best" automated copyright blocking systems fail to protect fair use. Worse, these techniques are unlikely to make any lasting dent on infringing behavior, but will instead just invite the use of more encryption and private "darknets" (or even just more hand-to-hand sharing of hard drives and burned DVDs). But perhaps the most pernicious effect may be that copyright protection measures can be trojan horses for consumer surveillance. In an age of warrantless wiretapping and national censorship, building more surveillance and inspection technologies into the heart of the Internet is an obviously bad idea. In the words of the Hollywood movie, "if you build it, they will come."
Intimidate and propagandize travelers at the border
Customs authorities should be encouraged to do more to educate the traveling public and entrants into the United States about these issues. In particular, points of entry into the United States are underused venues for educating the public about the threat to our economy (and to public safety) posed by counterfeit and pirate products. Customs forms should be amended to require the disclosure of pirate or counterfeit items being brought into the United States.
Does that iPod in your hand luggage contain copies of songs extracted from friends' CDs? Is your computer storing movies ripped from DVD (handy for conserving battery life on long trips)? Was that book you bought overseas "licensed" for use in the United States? These are the kinds of questions the industry would like you to answer on your customs form when you cross borders or return home from abroad. What is more, this suggestion also raises the specter of something we've heard the entertainment industry suggest before: more searches and seizures of electronic goods at the border. Once border officials are empowered to search every electronic device for "pirated" content, digital privacy will all but disappear, at least for international travelers. From what we've learned about the fight over a de minimis border measures search exclusion in the latest leaked text, ACTA might just try to make this a reality.
Bully countries that have tech-friendly policies
The government should develop a process to identify those online sites that are most significantly engaged in conducting or facilitating the theft of intellectual property. Among other uses, this identification would be valuable in the interagency process that culminates in the annual Special 301 report, listing countries that fail to provide adequate and effective protection to U.S. intellectual property rights holders. Special 301 could provide a focus on those countries where companies engaged in systematic online theft of U.S. copyrighted materials are registered or operated, or where their sites are hosted. Targeting such companies and websites in the Special 301 report would put the countries involved on notice that dealing with such hotbeds of copyright theft will be an important topic of bilateral engagement with the U.S. in the year to come. (As order generic viagra noted above, while many of these sites are located outside the U.S., their ability to distribute pirate content in the U.S. depends on U.S.-based ISP communications facilities and services and U.S.-based server farms operated commercially by U.S.-based companies.)
Some background: the Special 301 process is a particularly unpleasant annual procedure by which the United States Trade Representative (USTR) pressures other countries to adopt tougher intellectual property laws and spend more for IP enforcement. In the Special 301 report, the USTR singles out particular countries for their "bad" intellectual property policies, placing them on a watch list, and threatening trade sanctions for those that deny "adequate and effective protection" for US IP rightsholders or restrict fair and equitable market access for US intellectual property.
Before this year, the US Trade Representative only sought input from the entertainment and pharmaceutical industries for these rankings, resulting in unbalanced assessment criteria. Countries have been listed for failing to sign on to controversial international treaties or for not mirroring certain parts of US law. For example, Chile was named for considering fair use-style exceptions to its copyright law; Canada was listed for requiring that its customs officers have a court order before seizing goods at the border; and Israel was highlighted for refusing to adopt DMCA-style anti-circumvention provisions after legislative debate concluded that anti-circumvention laws would have no effect on copyright infringement.
The creative communities' proposal imagines that the US Trade Representative should become a glorified messenger for Big Media, using its resources to pressure countries that "harbor" websites and Internet services that facilitate copyright infringement. In other words, they believe that the USTR should put US IP rightsholders' interests at the center of its foreign policy, ignoring other foreign policy goals such as regional security, and promoting innovation and competition.
Federal agents working on Hollywood's clock
The planned release of a blockbuster motion picture should be acknowledged as an event that attracts the focused efforts of copyright thieves, who will seek to obtain and distribute pre-release versions and/or to undermine legitimate release by unauthorized distribution through other channels. Enforcement agencies (notably within DOJ and DHS) should plan a similarly focused preventive and responsive strategy. An interagency task force should work with industry to coordinate and make advance plans to try to interdict these most damaging forms of copyright theft, and to react swiftly with enforcement actions where necessary.
This is perhaps the most revealing of the proposals: big Hollywood studios deputizing the FBI and Department of Homeland Security to provide taxpayer-supported muscle for summer blockbuster films. Jokes have been made about SWAT team raids on stereotypical file-sharers in college dorm rooms — but this entertainment industry request to "interdict…and to react swiftly with enforcement actions" brings that joke ridiculously close to reality.
What next?
Of course, these comments are just an entertainment industry wishlist, an exercise in asking for the moon. But they reveal a great deal about the entertainment industry's vision of the 21st century: less privacy (with citizens actively participating in their own surveillance), a less-neutral Internet, and federal agents acting as paid muscle to protect profits of summer blockbusters.
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