American anti-piracy law is certainly pretty useless. Will the new UK legislation offer a better deal for rights holders?

26 August 2010 - The RIAA has over the last 10-15 years acted in ways which have often left it appearing anti-consumer, stuck in the past and blind to change. It’s fair to say we’re not the RIAA’s biggest fans but this week we find ourselves completely in agreement with statements made by its president Cary Sherman.
He complained that the USA’s current copyright laws are unworkable, placing an unfair emphasis on rights holders to police and respond to infringement, whilst those site hosting the infringements are protected by safe harbour allowances. Specifically, he complained that current US anti-piracy legislation as detailed in 1998’s Digital Millennium Copyright Act needs to be re-assessed.
Any one who has ever tried to send DMCA takedown notices to infringing sites will know that it can be hugely time consuming and often ultimately ineffective. The scale of piracy is so massive that unless those hosting the illegal content are held responsible in some way, there is no realistic chance of copyright owners seeing their ownership of the works respected. The legislation certainly works to the advantage of companies such as Google however, which recently used DMCA safe harbour provisions as the key tool of defence in its court battle with Viacom. The balance is not right.

No doubt the RIAA is quite envious of the UK’s new Digital Economy Act, which places considerably more pressure on ISPs and other intermediaries to actively engage in preventing access to pirated content. The DEA calls on rights holders, ISPs and the media regulator Ofcom to each play an active role in implementing a system which monitors levels of copyright infringement, as well as warning and ultimately taking sanctions against persistent offenders. The legislation also crucially includes powers which could see the blocking of access to websites which systematically engage in copyright infringement. There are heavy burdens of proof to be met before sites can be blocked, but at least the possibility is there. Whilst the measures outlined in the DEA undoubtedly appear to work more in favour of copyright owners than the existing US legislation, those measures are as yet untested and there’s still a considerable way to go before the DEA becomes effective. We are soon however to reach the first important landmark since the passing of the Act, when Ofcom publishes by the end of September its statement on the consultation process about the Initial Obligations code. This will provide the first concrete intelligence on how the DEA could be implemented, what the costs involved are likely to be and whether the legislation is workable in real terms. The DEA has many critics, mostly those who fear the persecution of individual consumers. We prefer to focus on the desperately needed measures contained within that could provide a way to deal with organised piracy or complicity with it. There are undoubtedly businesses which profit from currently weak legislation on online piracy, and it’s about time they lost the ability to do so.