M+E Daily

Film studios and others have been pressing both chambers of Congress to give copyright laws new teeth, claiming that current enforcement measures have done little to stem unauthorized online streaming or the sharing of copyrighted material via “cyberlockers.” But advocacy groups argue that a scheme for shutting down so-called “rogue sites” would risk collateral damage by potentially ensnaring legitimate online activity.

Debate on the issue was among the highlights from a House subcommittee hearing on protecting online commerce earlier this week (full webcast here).

Rights holders want a mechanism similar to one proposed by the Senate in last year’s Combating Online Infringement and Counterfeits Act, under which federal agents would have been able to secure court orders to seize the domain names of “rogue sites.” Proponents say such enforcement would bring the immediate result of shutting down infringing activity; opponents say the scheme offers site owners no opportunity to defend themselves before disrupting potentially legitimate operations.

“We know today who is stealing our content,” said Frederick Huntsberry, chief operating officer of Paramount Pictures, in his testimony before the subcommittee. “It is very obvious: we know who we are licensing to, [and] therefore any site we are not licensing to is stealing our content.”

From Huntsberry’s perspective, site owners should be given a right to defend their operations only “after the seizure.” That scheme drew skepticism from Rep. Mel Watt (D-N.C.), who pointed out that takedowns of legitimate sites would create new commercial consequences.

Daniel Castro, senior analyst for the Information Technology and Innovation Foundation (ITIF), offered that under current government policies, suspected counterfeit “physical goods are seized before there is a court review.”

“I wasn’t too hot on that process either,” Watt said. “Even if you’re seizing unlawful stuff, you ought to give people an opportunity to tell [a judge] that it’s not unlawful.”

Rep. Ted Deutch (D-Fla.) posited that the government should be able to effectively and accurately maintain a list of sites that were infringing copyrights at a “rogue” level. “There is no [organization that] has more resources at their disposal than the federal government to compile such a list,” he said. With sites “where there is nothing except what’s illegal being done, clearly…the federal government ought to be able to make that determination before moving forward on shutting down that domain name.”

But government maintenance of a “rogue site” list would represent a marked departure from procedures of the current Digital Millennium Copyright Act (DMCA), said David Sohn, senior policy counsel for the Center for Democracy and Technology (CDT) public interest group. “It’s asking us to really do a sea change in our legal approach to some of these entities,” Sohn added, “for results that I actually don’t think would make much difference in [curbing] infringement.”

Compounding the problem is that many movie streaming and cyberlocker sites keep operations outside U.S. borders. Sohn pointed out how even after popular infringing sites are shut down, unauthorized streams or downloads of particular content can be easily found.

Efficacy of proposed measures aside, the problem has grown beyond the scope of what the DMCA can handle, according to Huntsberry. “We have reached the limits of self-help,” he stated. “Last year, Paramount sent over 40 million infringement notices,” along with 1.5 million takedown notices to cyberlocker sites. “Yet the same content is still a few clicks away.”