Breaking the rhetorical stalemate – not the Internet

It’s time to move beyond the notion that copyright and free expression conflict, and that anti-piracy remedies will “break the internet.”

This myopic narrative has hampered nearly every conversation about protecting the legal market for creative works against the threat of piracy, which remains a daunting problem. To give you a sense of its scope, according to one report, global visits to piracy sites reached 190 billion in 2018. Moreover, it’s causing real harm. Another report found that “global online piracy costs the U.S. economy at least $29.2 billion in lost revenue each year.”

Of course, the Framers saw no such conflict, enshrining both copyright and free speech protections in the U.S. Constitution. And their vision has withstood the test of time. Fast forward to 1985, when the Supreme Court affirmed their view, explaining that “the Framers intended copyright itself to be the engine of free expression.” The advent of the internet hasn’t diminished copyright and free speech’s potent bond. A letter signed by close to 80 respected bipartisan organizations and voices to the 116th Congress stated: “Strong IP rights go hand-in-hand with free speech as creators vigorously defend their ability to create works of their choosing, free from censorship.”

So where do we go from here? Solving these problems requires us to move beyond this rhetorical stalemate and objectively observe the facts on the ground. When we do, we find that democratic jurisdictions around the world haven’t had to make a choice between free speech and copyright.

On the contrary, governments and thoughtful private sector leaders are deploying common sense, collaborative, effective approaches to diminishing online theft – while at the same time protecting speech, expression and due process.

For instance, a new report from the Information Technology and Innovation Foundation documents a far-reaching web of voluntary, private sector agreements designed to stop major piracy operations from exploiting the infrastructure of the internet. Payment processors, domain name operators, search engines, hosting and cloud service companies, security firms, and others have all joined with creators to implement common-sense, collaborative tools to make the internet safer and more secure for everyone.

What’s more, legal remedies, including site blocking, have also effectively mitigated piracy without endangering democratic values. Thirty-four countries – largely in Europe and the Asia-Pacific – allow piracy victims to obtain “no-fault injunctions,” under which internet intermediaries, including access-provider ISPs, are required to take reasonable measures to limit clearly infringing activity, not as a wrong-doer themselves, but in their capacity as a party uniquely well-suited to prevent the use of their facilities to further the infringement by others.

This works.

Peer-reviewed academic research conducted at Chapman and Carnegie Mellon Universities found that in the U.K., blocking by ISPs of 53 sites reduced traffic to the blocked sites by 88 percent in the three months following the blocks and caused a 7 to 12 percent increase in the use of legal subscription sites by those affected by the blocking. It also caused an increase in new paid subscriptions.

Here in the U.S. – through the Digital Millennium Copyright Act of 1998 – Congress similarly intended to create a system of “cooperative accountability,” where a combination of private sector collaboration and reasonable legal standards would reduce illegal online content without overburdening creators or online service providers. But that equitable balance never materialized, and we instead got a one-sided “whac-a-mole” system in which the responsibility to find and remove stolen works falls almost entirely on artists and creators.

In Washington, the Senate Judiciary IP Subcommittee is undertaking a year-long review of the DMCA, and, if nothing else, Congress should use this process to finally move beyond messaging that pits creators against intermediaries. Because all over the world, governments and the private sector are innovating and implementing approaches to diminish online theft – and the internet remains a free, open, vibrant place for speech, expression and commerce.

For too long, this zero-sum rhetorical construct has only served to divide us and impede meaningful cooperation toward diminishing the spread of illegal content online.

We can do better.

Gail MacKinnon is Senior Executive Vice President for Global Policy & Government Affairs at the Motion Picture Association.