The best remedy for the MPAA and RIAA: Private Contract | John V. Petersen

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Recently, I sat with Richard Campbell and Carl Franklin on DotNetRocks to discuss the issues with SOPA, PIPA, ACTA, etc.. You can find the DNR recordings here – show 736 and 740.

In those shows, Richard, Carl and I agreed on several basic points:

– Works like movies, songs, etc represent intellectual property that is protected under Copyright

– The right’s holders of such works have the right to enforce their respective rights under Copyright law

– Notwithstanding the previous point, individuals  have doctrinal rights (Fair Use, etc) and are entitled to due process of law (5th/14th Amendments and the 39th clause of the Magna Carta!! :-))

With that, there is a tension. For a while now, I’ve been wondering if there is a fair and equitable solution to the tension between rights holders and the general public. I think there is and I think it rests with private contract.

The main problem with legislation like SOPA, PIPA, trade agreements, etc. – is that they seeks to take what are private rights and make them the stuff of governmental regulation. That’s not to say there isn’t a case for governmental regulation of the internet. If you regard the “Internet” as a public utility of strategic importance like telecommunications, the electrical grid, etc – you would have to come down on the side of regulation. Sure, there are the folks out there that claim such regulation is a violation of First Amendment rights – but that is not based on any shred of reasonable legal reasoning. The telecommunication infrastructure is regulated and I don’t see how that disturbs First Amendment Rights. This [government regulation of the internet via the FCC, FTC or something else] is a much broader issue than the narrow issue of private intellectual property rights that are protected under copyright.

As a general matter, I’m in favor of the Internet being regulated as a utility given how ubiquitous the internet is. Regulation can help clear up issues like venue/jurisdiction, and yes, it could clear up hurdles that allow right’s holders to enforce their IP rights – while at the same time – respecting and honoring the constitutional rights of citizens. For now, I’ll set that aside for another post.

Like any private rights, there are courts of law that can either award monetary damages and/or injunctive relief upon a satisfactory showing of evidence that set’s forth actual harm and/or potential harm. In these cases, defendants in such actions have rights to due process. The system in place and the laws in place work. The MPAA and RIAA are trade groups that represent both businesses that hold rights under copyright law – and it is the obligation of these businesses, either on their own or through their representative (MPAA and RIAA in this case) to prosecute their rights under the law. Just as it is not the job of the government to create burdensome regulations that inhibit business, it’s also not the job of government to enforce what are private property rights (in this case, intellectual property). That is not to be confused with the legal framework. It is the responsibility of government to provide that legal framework. Between the USA, EU and international agencies such as the WIPO – such a legal framework exists.

So then, how would this work? It’s actually quite simple. The issue is and always has been illegal downloading of material that is protected under copyright. The MPAA and RIAA wants to know who these people are. And candidly speaking, they have a right to know who they are and to sue these people for monetary damages. The solution is easy. Let’s use two of the biggest internet providers in the USA as an example: Comcast and Verizon. Both of these firms have to enter into license agreements to distribute content. They also happen to be internet providers as well. And it also happens to be that quite a lot of illegal activity occurs on their infrastructure.

Here’s the solution:

– As between the MPAA , RIAA, etc. and content distributors – add a term to the license that essentially says that upon demand, content distributors will foward the identities of account holders whose accounts have been involved in the distribution and transmission of content protected under copyright. Comcast is an interesting player here because they are on both sides of the table!!

– As between content distributors (like Comcast, Verizon, etc.) – in the terms of service to it’s customers, disclose that MPAA/RIAA relationship and the consequences for the illegal distributing and transmitting of content. This too is a private contract – in the form of license.

That’s it. The due process problem is solved. And – the rights holders have their remedy. Baring competent governmental regulation of the Internet as a utility, private contract, IMO, is the best vehicle to a remedy for rights holders. Is it perfect? No. Then again, no solution is. There will still be illegal activity. You can’t completely eliminate the illegal activity. I also think that going down the private contract route provides a level of transparency that initiatives like SOPA, PIPA don’t offer.

The torch and pitchfork crowd that believe there should be no regulation and no enforcement of IP rights needs to grow up and realize that this is about business and that such businesses represent industries that are the basis of livelihoods for private citizens like us. At the same time, the rights of private citizens need to be respected. As always, the best solution is somewhere in the middle and private contract gets us to a good middle ground. Above all, folks need to stay informed and a great place to do that is at ACT.