The technology that allows copyright owners to distribute content directly to consumers’ living rooms via streaming services also enables new forms of piracy: streaming of unlicensed content and stream-ripping – that is, using software to make an unlicensed copy of streamed content that would otherwise be licensed.
The cloud also presents new challenges for combating piracy. Cyberlockers, for instance, enable a user to upload content – with or without the copyright owner’s permission – that they can then access remotely or share with others; cyberlockers, because they are not routinely indexed by search crawlers, can be much more difficult for copyright owners to monitor for infringing activity than publicly searchable P2P networks.
With the growth of internet use, some argue that the backbone of the section 512 safe harbors – the notice-and-takedown system – has been overwhelmed by the sheer scale of notices of infringement being sent. The increased volume of notices put additional burdens on the rightsholders who sent them and on the OSPs who must respond to them under their safe harbor requirements.
Additionally, many rightsholders argue that the scale of notices sent makes section 512(g)’s requirement of court action to contest a counter-notice infeasible, especially coupled with the ten-day deadline to file suit following a counter-notice. Moreover, the volume of notices demonstrates that the notice-and-takedown system does not effectively remove infringing content from the internet; it is, at best, a game of whack-a-mole.
Further, the use of automated notice-generating technologies, which ease copyright owners’ monitoring for infringing content and facilitate more rapid response, raise concerns related to speech.
As does the length of time mandated for “put back” – with both politically sensitive and timely content, the delay can leave a user in a position where their counter-notice prevails and the content is put back up, but the audience for that content has moved on.
Finally, rightsholders say that other developments that obscure the identity of internet users have further complicated the notice-and-takedown process and, more generally, copyright enforcement online. These take two forms. The first is technologies that anonymize user data or mask the location of hosting services.
These include reverse proxy services that sit between the internet and the web servers that make up the internet, forwarding requests from internet users to web servers and collecting responses from those web servers so that web servers never communicate directly with internet users.
The second development comes from new foreign laws that limit how OSPs may use and share user information. Though there may be technological reasons for anonymizing data or masking location or important policy considerations that support increasing internet user privacy, these business and policy decisions tip the balance away from copyright owners by making it more difficult for them to identify infringers.
Voluntary Agreements Adopted by the Marketplace
Since the enactment of section 512, stakeholders have acknowledged perceived gaps in the enforcement framework for online infringement that cannot be addressed by legislative action. Stakeholders have thus developed a range of voluntary initiatives to address online infringement, from best practices to formal, binding agreements. These initiatives can be unilateral or can involve a collaborative effort among several parties across industries.
Congress has acknowledged the important role that voluntary initiatives and agreements can play in the online environment. Stakeholders likewise note that such agreements offer the advantage of allowing parties “to learn from the marketplace what is working and what is not…, to modify the agreement that resulted in the drafting of section 512 … and learn from experience.”
Several stakeholder groups have developed and implemented industry best practices for addressing online infringement. Payment processors and advertising networks, in particular, have utilized best practices in an effort to cut off payments and advertising revenues for web services offering infringing material, by using “follow the money” strategies that are “aimed at cutting off the supply of revenue flowing to rogue sites.”
These initiatives generally began as best practice statements that provided guidelines for conducting business and have evolved into more robust programs. While some stakeholders acknowledge the benefits of best practices guidelines, they also comment on the limitations, including the limited scope of influence and the lack of any force of law.
Formal agreements between various parties generally develop out of the best practices. While these agreements do not have the force of law, they do further emphasize the commitment to a shared goal in facilitating the operations within the notice-and-takedown framework.
The Copyright Office has found during the Study, however, that these formal agreements traditionally have not included small creators and individual users in their creation and implementation, limiting the success of these agreements in some cases.
Formal agreements between rightsholders and OSPs have taken the form of graduated response systems. Used most frequently for P2P networks, graduated response systems address online infringement by requiring an OSP to take a series of steps with respect to a user when it detects that that user has engaged in infringing activity.