Aspen Dispatch: Online Copyright Enforcement, Where Are We Now?

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ASPEN, COLORADO, August 18 – The emerging theme of the first full day at the Aspen Summit is liability: as internet content, applications and monetary streams evolve, does liability over legal issues like defamation, privacy and intellectual property shift?

The day’s second panel considered contemporary issues in copyright liability and enforcement:

• Tom Sydnor, Senior Fellow and Director of the Center for the Study of Digital Property, The Progress & Freedom Foundation (moderator)
• Jonathan Band, Owner, policybandwidth.com
• James Burger, Member, Dow Lohnes PLLC
• Michael O’Leary, Senior Vice President and Chief Counsel for Federal Affairs and Policy, Motion Picture Association of America
• Shira Perlmutter, Executive Vice President, Global Legal Policy, IFPI
• Jule Sigall, Senior Policy Counsel, Copyrights and Trademarks, Microsoft

Each panelist began by presenting an overview of the state of play in copyright as far as their constituents are concerned. Shira Perlmutter’s presentation was the most comprehensive in this regard, and she gave a particularly robust review of online music copyright enforcement in Europe and East Asia. The key distinction in these markets vs. the US is that legal foundations have been in place to make ISPs liable for enforcement and private and public entities are now cooperating to push these intermediaries to follow-through on it. Ms. Perlmutter highlighted negotiations in France as being the furthest advanced in these terms – there, ISPs are now responsible for sending a series of notices to users who infringe copyright, with the ultimate consequence of discontinuing the user’s Internet service.

The panelists often framed the issue of online copyright enforcement as one of technological enforcement (like filtering) vs liability enforcement (mainly ISPs). However, all of the representatives agreed that a process characterized by gradual progress and cooperation among copyright holders, ISPs, users, and technologies was required. Jule Sigall of Microsoft defined his firm’s approach to copyright enforcement as one that will rely on a gradual response that is user driven.

James Burger summed up his view on the different approaches to enforcement: “Filters don’t work, graduated approach is great, but anything that is ensconced in legislation will be broken by the hackers…don’t go to the government for help,” he warned.

John Band expressed his concern that shifting liability to ISPs and to network admins at US universities in particular was really just cost shifting that the consumer wouldn’t put up with for long. Michael O’ Leary disagreed, saying that absent the cost shifting, the user is still paying for copyright infringements if they run rampant on college campuses.

Some audience push-back came in the form of questions regarding the slippery slope that may be established by shifting libability to the ISPs. Expressing the sentiments of the first panel, Eugene Volokh wondered what would stop injured parties from forcing ISPs to institute similar enforcement mechanisms for defamation cases (like those in European IP cases).

Shira Perlmutter postited that the infringement in online copyright cases is distinct, easily traceable, and relatively straight-forward in terms of the legal violation. Defamation is messier.

If this panel of (mostly) representatives from the IP holder inustries is any sign of things to come, ISPs can expect to play a much larger role in enforcement, but there also appears to be a general air of conciliation whereby these industries are interested in cooperation with and consensus among all stakeholders involved in copyright infringements.