On August 30, Commerce Secretary, Gary Locke delivered a speech at Belmont University in which he laid down the Obama Administration’s views on the “rampant piracy of music, and . . . intellectual property.” Locke, echoing the words of Vice President Joe Biden, stated that, “‘piracy is flat, unadulterated theft,’ and should be dealt with accordingly.” I wonder exactly how the government is planning to deal with this problem. In a technological world that is in a constant state of change, it seems almost impossible to find a way to effectively deal with the ever evolving and increasing cases of online piracy. Wouldn’t any law put in place become obsolete (or at the very least, not as effective) within a matter of years, if not amended to reflect the latest innovations in online piracy? The obvious answer is, of course, yes. However, not so apparent is the notion that frequency does not necessarily guarantee that the law (amended or otherwise) will be effective in practice.
Such is the argument that the Recording Industry Association of America (RIAA) makes with regards to the Digital Millennium Copyright Act (DMCA). The DMCA is a complex piece of legislation that addresses the illegal transfer of copyrighted music by holding the individual infringers, as well as the companies facilitating these transfers, liable. Although the DMCA is amended every three years, Cary Sherman, RIAA president, takes issue with the safe harbor provision in Section 512(c) of the Act. The provision shields qualified Internet Service Providers (“ISPs”) from liability if once notified by the owner of possible infringement, the ISP takes the necessary steps to remove access to allegedly illegal material. According to Sherman, this provision somewhat explains why the copyright law “isn’t working,” as the provision provides an easy loophole; ISPs can continue to host illegal transfers of music without fear of punishment…so long as they adhere to DMCA removal procedures once contacted by the copyright holder.
I am inclined to agree with Sherman that the loophole may do more to stall progress in combating the increasing rates of online piracy. If Congress is serious about putting an end to online piracy and copyright infringement, it needs to understand and acknowledge the expansive nature of the Internet. There is just no way to locate, monitor, and eradicate all the infringements that occur online. To try to do so would almost certainly be an expensive exercise in futility. Having said that, it is imperative to create a piece of legislation that creates an incentive for ISPs to be more proactive in putting an end to users that continuously engage in copyright infringement. At the very least, Congress should take care not to give ISPs an incentive to be passive in detecting infringed material. As written, the loophole allows ISPs to wait to be notified by the copyright owner of possible pirated material before taking action to remove the material. At this rate, it is no wonder that piracy is a “growing threat . . . providing a constant challenge to the music industry.” Perhaps in amending the DMCA in the future, Congress should consider incorporating some sort of added benefit or punishment to the ISPs to induce a more directed response toward stopping online piracy.
The answer to the problem of online piracy is not one that will be easily found. It seems that the key lies in finding a policy that is tough enough to effectively eradicate online piracy, but flexible enough to “preserv[e] the Internet as an avenue for commerce for music and for other creative industries.” Notwithstanding the impending difficulty, Locke pledged that the Obama Administration will continue to actively encourage internet service providers and content owners to work together to “combat intellectual property infringement . . . especially to combat repeat infringement.”
*Tierryicah Mitchell is a second-year law student at Wake Forest University School of Law and is Secretary of the Black Law Student’s Association. She holds a Bachelor of Arts and Science in Political Science and History from the University of North Carolina at Chapel Hill. Upon graduation in 2012, Ms. Mitchell plans to work for the federal government.