Yesterday, we covered
comments from the RIAA on how it believes courts have weakened the DMCA to the point of uselessness and why the organization supports the highly controversial E-PARASITE Act. It's not the first time we've covered the controversial legislation, but the leader of the RIAA, Cary Sherman, has weighed in with his own personal views and rebuttal. It's unusual for the head of the RIAA to directly confront such criticism, and it's worth revisiting the topic to evaluate his response.
Sherman's argument rests on two premises. First,
it should be unacceptable to any of us involved in legitimate commerce online that a rogue Web site based outside of the United States -- but hawking U.S. products or copyrighted works -- can currently escape U.S. laws. That's not an issue that a better business model could alleviate. It's Web sites brazenly posing as legitimate commercial entities for the sole purpose of duping consumers, often in countries with lax copyright regimes like the Ukraine or China...
Secondly, the answer simply can't be to "do nothing." Throwing up our hands or saying "we care about copyright theft but will offer no constructive ideas" is not an acceptable outcome or answer.
The second point is absolutely valid. The first is accurate insomuch as it correctly identifies a problem, but it implies a solution that isn't actually legal. If the RIAA identifies a counterfeit CD factory in China, it can't send in the US Army (or even the Oakland PD) to handle the problem. One of the problems with the E-PARASITE act is that it allows for a degree of cowboy diplomacy in cyberspace that would flatly violate the sovereign territory of any physical nation.
Sherman goes on to claim that the law as written "affords even more legal safeguards to overseas-based sites than the constitutional process in place under current law for domestic sites. It places considerable burdens on potential enforcement, and includes specific parameters to determine whether a site qualifies as one "dedicated to the theft of U.S. property" and stipulates necessary steps to be undertaken before any taking action to block access or funding."
The steps, we must note, are entirely one-sided. ISPs, payment providers, advertising services, search engines served with notification of infringement are given five days to strip the offending property of various links, payments, and associated functions. Period. There's no automatic grace period, no provision for a counter claim, and no simple way for a site accused of infringement to establish its innocence. The five day window is laughable considering the time it would take to retain a lawyer, begin the process of responding to a claim, and advocate for oneself in a domestic
case. The idea that a foreign national can easily do so in this time frame is a joke.
The greater problem, however, is that Sherman continues to view this issue as one that must compel ISPs to act as police, clearly indicated when he states "Importantly, the bill allows ISPs to determine the best way to target foreign rogue sites." In point of fact, the multi-faceted nature of the assault is part of what makes it impossible to stop. An alleged infringer doesn't simply have to defend himself in court, he has to communicate the results of that defense to all of the companies he once associated with and convince them to hand over his property and restore his privileges.
Carey concludes, "we want to stimulate further legitimate online growth by making sure that thieves operating offshore can't tilt the playing field against legal services. It is ironic sometimes that we are faulted for protecting our rights. But surely there is a place for reasoned conversation, for rational discourse, for genuine efforts to understand each other."
We agree. If the RIAA and MPAA want to stimulate genuine conversation, we'd recommend they start by dropping all attempts to co-opt ISPs and search engines as policemen. Even if we grant that Sherman has no interests other than protecting the legitimate business interests of the RIAA's constituents, there's no guarantee that future leaders will feel the same way. The potential for censorship created when neutral service providers are turned into quasi-military cyberspace police is too enormous to be allowed to exist.
Rather than attempting to strong-arm the political process, the RIAA/MPAA should aggressively license their products for legal streaming and distribution at prices and with features that the market is willing to bear. Once upon a time, the music industry claimed it was impossible to compete with 'free' until iTunes proved otherwise. Destroying Napster, Kazaa, and Limewire didn't stop file sharing. Destroying foreign websites won't stop file sharing, either. Sherman claims to want to see digital distribution succeed, but his policies continue to rely on failed models and draconian measures. If E-PARASITE passes, it'll hand corporations veto power of a sort China only wishes it possessed. No, that doesn't mean the RIAA would abuse its abilities in the same way -- but it's simply not worth the risk.