The best remedy for the MPAA and RIAA: Private Contract

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.

 

About johnvpetersen

I've been developing software for 20 years, starting with dBase, Clipper and FoxBase + thereafter, migrating to FoxPro and Visual FoxPro and Visual Basic. Other areas of concentration include Oracle and SQL Server - versions 6-2008. From 1995 to 2001, I was a Microsoft Visual FoxPro MVP. Today, my emphasis is on ASP MVC .NET applications. I am a current Microsoft ASP .NET MVP. Publishing In 1999, I wrote the definitive whitepaper on ADO for VFP Developers. In 2002, I wrote the Absolute Beginner’s Guide to Databases for Que Publishing. I was a co-author of Visual FoxPro Enterprise Development from Prima Publishing with Rod Paddock, Ron Talmadge and Eric Ranft. I was also a co-author of Visual Basic Web Development from Prima Publishing with Rod Paddock and Richard Campbell. Education - B.S Business Administration – Mansfield University - M.B.A. – Information Systems – Saint Joseph’s University - J.D. – Rutgers University School of Law (Camden) In 2004, I graduated from the Rutgers University School of Law with a Juris Doctor Degree. I passed the Pennsylvania and New Jersey Bar exams and was in private practice for several years – concentrating transactional and general business law (contracts, copyrights, trademarks, independent contractor agreements, NDA’s, intellectual property and mergers and acquisitions.).
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  • Anonymous

    Meant to 100′s of years …

    Bottom line, Copyright isn’t going away.

  • http://twitter.com/Sekhat =!–!=

    “Copyright has been around in one form or another for 1000′s of years.”

    I beg to differ…

    http://en.wikipedia.org/wiki/Copyright#History

    It used to be a great honor to have ones work copied, until, copying things became as simple as positioning a few glyphs in a printing press…

  • Anonymous

    I’ll tackle your second point first: ‘A better approach to dealing with this situation is to take a hard look at our copyright laws”

    Right..that’s what congress has been doing..and how has that worked out? It’s really not the concern of the gov’t to get involved in any one firm’s business model.

    As to your comments as it being a “horrible idea” – here are my responses:

    1. The moving party has the burden of proof.
    2. As to who controls ,the parties to the contract control all of that
    3. As to privacy – you have the right to go with the provider that addressses those concerns best for you. Vote with your feet and wallet!!
    4. Well..I’m a lawyer and a nerd..sue me.. I think in this case, you are chiding me for the forum, not the idea so much. My blog.. I get to write what I want.. :-)
    5. This is the first point that I agree with as being a bit of a problem – and why there has tob e governmental oversight vis a vis the FCC/FTC. Never said my idea was perfect.
    6. As for universities, when you sign on to those networks, you agree to all sorts of things

    Have to say, you didn’t really undercut the idea that much. Nevertheless, I appreciate the comment.

  • Anonymous

    Copyright has been around in one form or another for 1000′s of years. Copyright, as we know it, has only been around a few hundred years. The issue isn’t copyright law per se – but rather the legislation around it.

    The question as to why protections extend – that’s easy. Politics, and specifically $ – which is the mother’s milk of politics. Give generously to the politicans, they are much more likely to vote your way…:-)

  • scott ross

    This is a horrible idea.

    Here are some reasons why:
    1) Who is doing the “proving” or “disproving”;
    2) where and who controls the process
    3) where is the privacy concerns for the citizen and why do copyright laws trump that
    4) technology mismatch (i find it hilarious that on a technical blog, this is so easily ignored)
    5) In some areas, ISPs hold a monopoly on services. That has very, very negative connotations.
    6) How do you handle ISPs that don’t agree? What about networks like Universities?

    A better approach to dealing with this situation is to take a hard look at our copyright laws, determine if they actual provide protection for IP or are a funding source for businesses that don’t want to change there models.

  • scott ross

    I think you want it to copyright to “be the way”; but I have a hard time believing its the only way.

    Copyright laws are mostly to blame for this debacle in the first place. Why do we protect works the way we do, and is it fair that an industry hide behind copyright laws and refuses to innovate new business models?

  • http://www.facebook.com/alek.davis Alek Davis

    Regarding Baker being progressive: good for him. Regarding your claim that “copyright IS the way to support creative work”, I’m not sure this is an axiom. Specifically the “the” part. It’s “a” way, sure, but are you implying that before copyright laws there was no creative work?

  • Anonymous

    **
    If I leave my car unlocked and it gets stolen and is used in a crime should I be charged because I foolishly left it unlocked?
    **

    No, but if you lose your gun, don’t report it and it gets used in a crime, you could be held liable. Context is everything.

    Right..WEP can be cracked. The deal is – you can still track things to the MAC address. If you don’t have that device, then it means the plaintiffs have to go down another road.

    The basic point is that whether your router is secure or not (and it should be) – there are ways to show it was not you. It would be a pain in the ass – but it is doable.

  • Anonymous

    Well…Baker does ID himself with being “progressive” You can’t end copyright. This line from Baker is ridiculous:
    “but the real lesson from the SOPA debacle is that we need to develop alternatives to copyright to support creative work. ”
    This is a clear case where the conclusion does not flow from the premise. i.e. – it’s a logic bust. Copyright IS the way to support creative work. SOPA was bad legislation – period. The lesson was/is don’t try to implement bad legislation. And – be sure there is no impedance mismatch between the sickness and the cure.

  • http://www.facebook.com/alek.davis Alek Davis

    Or consider an alternate approach suggested by Dean Baker: http://www.huffingtonpost.com/dean-baker/the-surefire-way-to-end-o_b_1224165.html

  • Justin Bezanson

    I meant I know many people that leave their wifi open or only use WEP to secure it. Also, WEP can be cracked in as little as a few seconds.

    Negligent or not, should they still be liable for someone else’s infringement? If I leave my car unlocked and it gets stolen and is used in a crime should I be charged because I foolishly left it unlocked?

    It would require ISP supplied and set up routers as part of the hookup process to make a system like you describe reasonable accurate and fair. Not to say that wouldn’t happen. I’m sure ISPs would love to be able to charge every customer and extra monthly fee for a mandatory router.

  • http://johnvpetersen.myopenid.com/ John V. Petersen

    What you are referring to is a negligence standard I suppose. You mention when someone “cracks” your WEP protected router. You then followed up with the fact that people leave their wireless routers open. The latter does not represent a case of “cracking” a router.

    If you cross the street, not realizing the light is red while texting and you get hit by a car, you are at the very least, contributorily negligent. You failed to do what the reasonably prudent person would do. In other words, you were negligent.

    Now…does the reasonably prudent person lock out his/her wireless router? Guess it depends. Then again, it may be a red herring.

    Traffic can be sourced to a MAC address, right? Let’s say that traffic from my router is PRESUMED to come from me or somebody authorized to use my router. But it’s a rebuttable presumption. There’s all kinds of things we can do to rebut the presumption. For example, does that rouge MAC address have other traffic that runs through the ISP? With little effort, it could be reasonably deduced that the MAC address was from a machine that highjacked the WAP. Bottom line, there are all sorts of objective ways you can demonstrate, by a preponderance of the evidence, that it wasn’t you…. :-)

    For the record, I believe that folks who don’t secure their routers are negligent. It’s not what they know or don’t know. It’s what they SHOULD know.

    Thanks for your thoughtful comment.

    John

  • Justin Bezanson

    Good luck convincing the court/MPAA/RIAA/your ISP that it wasn’t you if you have an open wifi router or someone cracks your WEP protected router. I know lots of people who leave there router open or use WEP because they don’t know any better.

    Under your plan they have little recourse because their name is attached to the IP address. I doubt “It wasn’t me but I can’t prove it” will get them very far in court. An IP address does not identify a person!

    For the record I believe that right’s holder’s do have a right to protect their property but their is no simple, one size fits all solution.