Technical Measures in the Fight Against Piracy: A Cautionary Tale #IncentivesMatter

by Neil Turkewitz

To aid in the EU’s consideration of Article 13 and the Copyright Directive in the Trilogue process and in the lead up to the final Parliamentary vote, I thought it might be helpful to review some of the history that has led us to this point — and to explore some relevant aspects of the legislative history of the DMCA in particular given its role in informing the EU’s E-Commerce Directive and more generally in defining the parameters of global internet governance in these past 20 years. In following current EU debates, I was particularly struck by comments from opponents of Article 13 along the lines that technical solutions at the platform level should be rejected in favor of reliance upon direct liability of the infringer. During Congressional hearings in the mid-1990’s leading up to the DMCA, similar arguments were presented…and ultimately rejected at least at the theoretical level. Based on the information and technology available at the time, Congress chose to not mandate any particular technology, but to encourage the parties to work together to develop and implement technical solutions in addition to the other conditions placed on safe harbors. It was very clear to all parties, private and public, that technological measures were going to be a key aspect of the desired balance in the internet ecosystem, and Section 512(i) expressly provided that:

(i)Conditions for Eligibility. —

(1)Accommodation of technology. — The limitations on liability established by this section shall apply to a service provider only if the service provider —

(A)has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers; and

(B)accommodates and does not interfere with standard technical measures.

(2)Definition. — As used in this subsection, the term “standard technical measures” means technical measures that are used by copyright owners to identify or protect copyrighted works and —

(A)have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process;

(B)are available to any person on reasonable and nondiscriminatory terms; and

(C)do not impose substantial costs on service providers or substantial burdens on their systems or networks.

It is imperative to note that the accommodation of “standard technical measures” referred to in Section 512(i)(1)(B) is an active standard, not merely lack of interference. The DMCA dealt with interference/circumvention in a separate section of the law — Section 1201. That section, unlike Section 512(i), placed no affirmative obligation on service providers to engage in proactive efforts to address infringement. Section 512, on the other hand, was aimed at achieving active service provider engagement in the development of a more robust response to infringement than could be achieved through mere reliance on notice and takedown in conjunction with prohibitions against circumvention of technical measures. Sadly — but as predicted by many copyright owners at the time, the measures contemplated by Section 512 have not been developed and implemented. While the specific legislative history and modalities in the EU were somewhat different, the understandings and objectives were identical — policymakers expected the deployment of technological tools to play a major role in addressing online infringement. More to the point, that set of expectations was a foundation of the balance sought to be established via the construction and parameters of safe harbors in both the US and EU.

The Senate Judiciary Committee’s Report from May 11, 1998 on the DMCA is instructive:

“a provider’s system must accommodate, and not interfere with, standard technical measures used to identify or protect copyrighted works. The Committee believes that technology is likely to be the solution to many of the issues facing copyright owners and service providers in this digital age. For that reason, we have included subsection (h)(1)(B), which is intended to encourage appropriate technological solutions to protect copyrighted works. The Committee strongly urges all of the affected parties expeditiously to commence voluntary, interindustry discussions to agree upon and implement the best technological solutions available to achieve these goals.”

Twenty years on, and Congressional expectations of “expeditious..interindustry discussions to agree upon and implement the best technological solutions” remains unrealized…a dead letter.

The EU now has an opportunity to resuscitate it, and to breathe life into a critical aspect of the deal that both the US and EU thought they were capturing in their respective framing of rules for intermediary liability. Opponents of Article 13 will tell you that technology can’t be developed that could meaningfully address infringement. In fact, they are more sure of this technological impossibility in 2018 than they were in 1998 when they were making representations in order to obtain limitations on liability. I have posted excerpts from a hearing held by the Senate Judiciary Committee on September 4, 1997 in consideration of the proposed DMCA.

CHAIRMAN HATCH:

Well, let me just say that I am told that technology may exist which, if content providers and service providers were able to agree on a market protocol, would allow operators of networks and content providers to better detect and deter third party digital transmissions which infringe on copyright. One might consider whether, assuming leading service providers, OEMs and content providers were empowered by Congress to do so, the information technology industry could develop a private protocol which would be implemented across the industry spectrum whereby liability for third-party infringement is substantially limited and ensuring that the costs of developing and implementing such a program are borne by everybody, by all.

Mr. Cary SHERMAN, on behalf of the Recording Industry Association of America:

Mr. Chairman, I think that the possibility of a technological solution is the holy grail that we are all looking for, and we think it can exist. But if the IAPs [internet access providers] got their way and got this exemption from liability, then what would be their incentive to deploy the technology? Why would they have any interest in helping us any longer once they no longer face any risk of liability? We need that to help level the playing field so that they will cooperate with us in trying to deter infringements.

Mr. Daniel BURTON, Novell, on behalf of the Business Software Association (BSA) and the Software Publishers Association (SPA):

We believe that if operators of networking services were relieved of liability, they would cease to cooperate with us in fighting piracy. The copyright law is the incentive for cooperation.

Question from Senator LEAHY:

Have any technical means been developed to protect copyright on the Internet by flagging either copyrighted material or infringing material?

Mr. George VRADENBURG, AOL, on behalf of the Ad Hoc Copyright Coalition (representing the existing internet companies & the principal advocates for safe harbors):

Several technologies are in the process of development for identifying or, in some cases, protecting copyrighted materials on the Internet. A basic source for information on basic technologies is “Intellectual Property Protection in Cyberspace: Towards a New Consensus” published by the Information Technology Association of America and updated slightly in “Technological Means of Protection and Rights Management Information (From Source to Savior: How DigitalTechnology will Save Authorship in the Age of the Internet”) by Ralph Oman. As of this date, no new technologies have been added to the catalog listed in the ITM document.

Contrary to wide belief, however, such technologies, while promising, are not likely to be ready for deployment for several years as they are still in their nascent development stage. And even then, much work needs to be done in terms of establishing inter-industry protocols, understanding and testing the technologies under real life conditions, adopting standards, and in general creating the complex infrastructure that will support an effective electronic copyright management system. To cite one small example, there are several competing digital watermarking proposals, and it is not known whether these competing systems will inter-operate once they become widely available or whether it will take several years for one to become the de facto industry standard by dominating the market. Moreover, since the technology has not been subjected to rigorous testing in a networked environment, it is uncertain whether digital watermarking will work once actually deployed in the Internet. Digital watermarking, which identifies copyrighted works, alone would not tell whether the work in question is subject to fair use or other exemption or infringing.

There are only a few elements I want to highlight. First, the fact that copyright owners correctly understood and predicted that the absence of liability would erode the incentives for cooperation in developing and deploying better tools to address online infringement. The testimony of Dan Burton on behalf of the major computer software companies is particularly direct, unambiguous and of direct relevance to current discussions in the EU: “We believe that if operators of networking services were relieved of liability, they would cease to cooperate with us in fighting piracy. The copyright law is the incentive for cooperation.”

Second, note that Vradenburg — here playing the role that EDiMA, EFF, EDRi and others are currently playing in the EU, referred to the fact that it might be “several years” before standard technical measures were widely deployed given the various complexities involved in deployment. In lobbying to obtain a safe harbor, internet companies held out the promise of technical measures — the “holy grail,” in a matter of years. Twenty years later, safe harbors having been safely pocketed, what might have taken several years has now apparently become impossible. The EU has taken huge steps forward to make it possible again — to reclaim the potential of the internet to drive investment in cultural production and sustain creators by demanding more responsible business practices on the part of internet service providers. We have had a major disconnect between the scale and speed of infringement and the response thereto. This disconnect is where dreams perish. We need to end the imbalance.