The United States Patent and Trademark Office opened a comment period recently for companies to vent about both piracy and counterfeiting. Of course, the series of comments are all a series of legalese requests from different groups or companies, speaking in their own self-interest. As its a comment period, it makes sense that the asks will be big on all sides. Nearly none of this will be proposed legislation, let alone actually make it to the letter of the law. Even with that caveat, it’s still worth interrogating some of the more cartoonish asks shared since American legislation does tend to primarily come from companies or “lobby groups” like the MPAA, RIAA, etc. As for piracy concerns in particular, it only tends to wither and die when folks on the internet begin to hear the impact it could have.
Many of the views expressed by these companies and their lobbyist organizations tend to be a direct counterpoint to technological development. This isn’t to say that they’re expressly against the march of “progress”, rather that they’ve tended to historically fight back against new developments that they fear will erode their position of strength rather than innovating to stay with the times. Think about the RIAA v. Diamond suit in which the Recording Industry Association of America tried targeting the creator of the Rio MP3 player, identifying it as a harbinger of their doom. In a sense, they might’ve been right, but only in the sense that they began to lose position in the face of failing to adapt to a changing world. History has borne out that piracy wasn’t the end of the music era, even though they reported that this would result in $300 million in losses as a result. It was a patently hostile move against a technological development for the simple reason of it being something accessible to people without a middle-man siphoning away some of the money. This is just one example but one that is fresh in the minds of many Millennials and has been thoroughly documented such as Stephen Richard Witt’s wonderful book, “How Music Got Free”.
What is the DMCA?
At this moment, the USPTO is asking for thoughts on the enforcement of current laws relating to piracy. Chiefly, this involves the DMCA, or as is properly known it’s more fun name, the Digital Millennium Copyright Act of 1998. There’s a huge number of resources available for learning more about the ins-and-outs of the DMCA, so I’ll shoot for brevity here. The DMCA was essentially a law penned into effect by the Clinton administration during the heyday of the dot-com bubble. Tech companies were being infused with so much investor cash that Silicon Valley become the newly anointed business class, beginning to bring in lobbyists and consultants.
To help ease the tension of the powers pitted against each other, the DMCA was an update to copyright law to provide a prescribed lane for entities on the internet to operate within. At the time, it was a welcome change that provided internet providers and other general hosts of user created content with a “safe harbor” status. This status was contingent on these hosts responding to reports that are filed in “good faith” and disabling access to content reported as copyrighted “expeditiously”.
The Comments
So this brings us to the comments submitted. I’ll group these by reporters.
UFC, NBA & NFL
The group of UFC, NBA and NFL submitted a comment that hit the broader tech press, putting this on my radar. It opens up as most anti-piracy content does, admitting that there’s no way to quantify piracy however offering up a $28 billion dollar loss as a result of it and waxing poetic about the impact it has on their noble offerings. I’m a pretty big sports fan, so I’ll be empathetic to the content and I do understand that pirated streams of live content do tend to be a stickier problem since it’s not a static file being shared. Their big sticking point is that we’ve hit an intersection of livestreaming being offered on all major social media platforms and the technology being able to offer indiscernible copies of streams. While not entirely true, the tech has certainly gotten better.
All of this culminates in their core ask that the DMCA is updated to be more specific on that tricky legal term of “expeditiously” removing content. Rather than targeting the “expeditious pirates posting advertisements on major social media platforms”, they’ve decided it’d be best to require all DMCA takedowns be actioned “instantaneously or near-instantaneously”. While they call this a “non-controversial measure”, it’d put platforms in a bit of a bind, providing two options for any host: staff enough of a volume of workers around the clock to handle any uptick in traffic from a particular event or automate this out.
The path of least resistance is automation, attempting to validate and immediately action DMCA takedown requests. While the companies say they’ve expended “considerable resources”, the likelihood is that they’ve also automated detection, which just results in bots talking to bots. This is almost sure to backfire, especially since reporters aren’t required to consider “fair use” in their filing. There will inevitably be collateral damage if this proposal is opened up to all DMCA requests.
Where we should likely land is something that can’t be legislated. There’s an apparent need for taking down this content in a timely manner, however opening the floodgates to “instantaneous” takedowns on every DMCA report would be nightmarish for providers and their customers. Most providers want to get this kind of report off their books for manual review. They tend to arrive in bursts and get a fair amount of pressure in the short term from reporters to address. There’s probably a middle road, in which the proper representatives from these sports leagues can partner with a provider and submit things in a special manner that puts them into a separate, automated lane. Of course, that separate “lane” is contingent on the reporter being accurate and timely. Bam! Problems solved!
UFC
On the same day as the submission from UFC, NBA and NFL, the UFC submitted a separate comment. This one comes off way more combative. To share one snippet in particular.
“OSPs currently do not do enough to address this problem, enabled by the lack of clarity under the DMCA.”
They truly came out swinging in this comment, targeting service providers as if they were some sort of intentionally complicit pro-piracy service. Again, this is clearly chest beating to try pushing the DMCA towards automation. Keeping with the theme of the first, they started off stating that there needs to be something done by service providers to get takedowns filed nearly instantaneously. Beyond that, they then went on to point out that some providers are beyond US jurisdiction, asking for the United States to implement a process for the federal government to “siteblock” things locally. I’ve got no clue what to say about this one other than the fact that putting the power to filter websites in the hands of the government feels uniquely un-American and is well beyond the pale for folks.
They close out copyright concerns with something a bit more tame, but still fairly impossible to regulate. This section is a bit less controversial, discussing technological components that they believe should be implemented by service providers including fingerprinting, granting automated takedowns for copyright holders, locking accounts with repeated takedowns, and preventing account creation for folks that are repeat offenders. The fingerprinting component is interesting, but unlikely to be applicable beyond platforms offering livestreaming directly. I already said that automated takedowns via a partnership is probably the best answer here but regulating that is tricky. Again, repeated account locking and prevention is a hard thing to regulate and something I suspect will just get punted upon.
Closing it out
Overall, these two were the most interesting of the bunch. I might add an addendum a bit later after reading the MPA comment, but I figure this has already run on long enough. The long and short has been that these companies are always going to press for things that embrace their niche position, but the scope of “piracy” has become a bit unwieldy as most social media platforms just don’t have this issue at the scope in which these companies are making it out to be. This is the kind of situation in which I’d need more data, although the reports these companies roll out as examples are often formatted by for profit companies that are largely funded by the companies themselves. It’s hard to imagine this not being a conflict of interest, although it’s often the information our leaders use.
In any case, on to the next one. I’ll see if there’s anymore to this and also try to post a bit more here. Editing has been minimal and this is mostly “stream of consciousness” after defining a few bullet point headers.