from the can't-do-the-impossible dept
Back in May of this year, the USPTO put out a request for public comments from interested parties in how to modernize its policies and/or copyright law to combat counterfeiting and online piracy. The world’s easiest prediction would have been that the copyright industries would request more stringent copyright rules and heavier and faster policing of copyright by literally anyone other than those from the copyright industries. That they did so is simply par for the course.
But one of the requests that stood out came from several major professional sports leagues, such as the UFC, the NBA, and NFL. Those leagues complain that the DMCA takedown process both doesn’t work for sites that aren’t hosted in the United States and that the takedown process takes too long when it comes to live sports broadcasts.
The Digital Millennium Copyright Act of 1998 requires websites to “expeditiously” remove infringing material upon being notified of its existence. But pirated livestreams of sports events often aren’t taken down while the events are ongoing, said comments submitted last week by Ultimate Fighting Championship, the National Basketball Association, and National Football League.
The leagues urged the US “to establish that, in the case of live content, the requirement to ‘expeditiously’ remove infringing content means that content must be removed ‘instantaneously or near-instantaneously’ in response to a takedown request.” The leagues claimed the change “would be a relatively modest and non-controversial update to the DMCA that could be included in the broader reforms being considered by Congress or could be addressed separately.” They also want stricter “verification measures before a user is permitted to livestream.”
I’ll leave aside the simple fact that “near instantaneous” is still ambiguous for the moment. What these leagues are asking for simply isn’t realistic. There isn’t a bench of copyright police out there at these ISPs with nothing to do just waiting with an itchy trigger finger to block the next site immediately that David Stern requests they block. Nor should they be, frankly. The existing law provides for takedowns, but the reality is that these leagues either are plenty successful and shouldn’t be worrying much about these streams of events, because those streaming wouldn’t by legit buyers anyway, or this is such a huge problem that it becomes a business model issue, rather than a technology issue.
As for this being a “modest and non-controversial update” to the law to remove the time for review of the requested site-block, well, you need only review the history of site-blocking regimes around the world to realize what a laughable statement that is. That link will take you to gobs of stories about countries that do this kind of regular and fast site-blocking and all of the corruption, censorship, and feature-creeping that has come along for the ride. All while, by the way, collateral damage goes up in those countries and the rates of piracy barely move.
So are these leagues really wanting their public comment to be that the problem with American copyright law is that we aren’t similar enough to the Russian and Chinese regimes? Really?
Fortunately, some tech industry groups are providing rebuttals. The Computer & Communications Industry Association (CCIA) pointed out that blanket speed-run takedown rules put upon ISPs and websites would create for them a massive chilling effect.
Under both existing copyright law and trademark law, there is no obligation on the part of online service providers to proactively monitor or enforce infringements. Rather, this is a matter of discretion and policy for each service, and should remain that way. The imposition of proactive enforcement obligations would be less effective, would inevitably negatively impact free speech and legitimate trade, and would introduce untold unintended consequences—digital services would be disincentivized from innovating and would do only what the law required, benefiting no one.
The CCIA also told the US that “the most effective way to prevent infringement is to ensure that members of the public, most of whom want to pay for content, can lawfully consume works digitally whenever and wherever they want.”
And because this train never fails to be on time, the Premier League’s answer to that is, of course, “make the robots do it.”
The US received comments about Automated Content Recognition (ACR) systems from England’s Premier League. ACR systems can “prevent unauthorized streams being uploaded onto the Internet,” the league said.
YouTube and Facebook already have such systems, the Premier League said. But for platforms without ACR, the Premier League said it wants live takedown tools that rights owners would operate themselves.
Left unsaid in that comment is the notion that these automated systems absolutely suck and cause a ton of false-positives in their takedowns, which is a nicer way of saying that they erroneously and preemptively block perfectly legal speech all the damned time. Stories about automated copyright bots taking down legitimate content are legion. Suggesting their wider use combined with instantaneous censorship is absurd.
If the leagues want to see improvements in our copyright regime, it would be nice if they came to the table with some actually new and nuanced ideas. The above are mere retreads, combined with a request for speed that doesn’t comport with reality. Do better, leagues.