The Case for a Gigantic Anti-Piracy Stick

If you’re a content creator or copyright owner, your assets have been mercilessly devalued over the past decade.

Sure, you can send cease-and-desists all day, and some do. But this is the entertainment industry, not a police force, and creators ultimately need to create brilliant music.  And good luck chasing foreign sites, which is where the action always seems to shift after a major US-based crackdown (ie, Napster).

The question is what’s fair, and what level of enforcement should apply. And in the halls of Congress this week, a new bill – the Preventing Real Online Threats to

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Economic Creativity and Theft of Intellectual Property – or PROTECT IP Act – has been formally introduced to enable far greater enforcement over ‘rogue’ sites.  This is the huge stick that the established entertainment industry wants, one that updates an earlier bit of failed legislation – the Combating Online Infringement and Counterfeits Act (COICA).

As drafted, the Justice Department would have the power to not only shut down sites, but seize domains, an extraordinary level of power.  Intellectual property owners would also be able to secure court injunctions through private actions.  Importantly, this also includes foreign sites, a very slippery group.

But the bill also targets ‘interactive computer services’ like ISPs, search engines, and credit card firms that ‘aid-and-abet’ these rogues, a huge expansion of liability.  Domain name registrars are also intricately involved in this discussion.

The question is whether stronger laws and policing can reduce the amount of piracy, and revalue digital content.  Hollywood, which still has a lot to lose, is definitely rooting for this one.  But big sticks can be complicated: for example, what happens to sites and services that are in a gray area, or wrongly accused?

And, what happens to the DMCA, a critical component of the business models for YouTube, Grooveshark and others?  “The act includes language that says it’s not intended to ‘enlarge or diminish’ the DMCA’s safe harbor limitations on liability,” said Electronic Frontier Foundation (EFF) attorney Abigail Phillips.  “But make no mistake, rights holders will argue that safe harbor qualification is simply immaterial if a site is deemed to be dedicated to infringement.”