Lawyers representing independent filmmakers, including the studio that produced Oscar-winner "The Hurt Locker," might learn something from a document filed with the U.S. Department of Commerce today by music, television, and film industry trade groups.
The Commerce Department recently sent out a request for information, known as a "Notice of Information," on "copyright policy, creativity, and innovation in the Internet economy." What the Commerce Department intends to do with the information it obtains was unclear this afternoon, but it did receive a response from nine trade groups representing the entertainment sector. In that report were a few notable points.
"The role of lawsuits in solving the online theft problem is clearly limited," wrote the coalition that included the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), and American Federation of Television and Radio Artists (AFTRA). "For instance, bringing clear-cut claims against major commercial infringers is not by itself a solution in the long run," the coalition wrote. "These cases take years to litigate and are an enormous resource drain."
As an example, the coalition cited the litigation against the company behind the LimeWire file-sharing network, which concluded this year with a federal district court ordering the company to shut down the network. The coalition wrote that though the four largest recording companies prevailed in the case, "the LimeWire defendants were able to drag out the litigation for four years. Such massive civil cases do not provide a scalable solution to the full scope of the problem."
In the case of Lime Wire, the company that operated the LimeWire software, the RIAA's antipiracy approach meant bringing suit against a company. That's different from the strategy adopted by Dunlap, Grubb & Weaver (DGW), the law firm that has filed copyright complaints against thousands of individuals accused of illegally sharing movies made by indie studios. But what the two approaches appear to have in common is that they cost a lot.
DGW has seen considerable opposition from the accused and now many of the cases appear as if they will drag on in the courts for some time. That likely means higher costs for the plaintiffs. The top-four labels pursued a similar legal strategy against individuals for five years but ended the practice in 2008.
The plan now by the labels and big Hollywood studios is to seek more copyright protection from the government. Here is some of what the coalition wrote in its report to the Commerce Department about the state of online piracy:
Peer-to-peer file sharing continues to account for at least 25 percent of all broadband traffic worldwide. A very high proportion of this traffic involves unauthorized copies of movies, TV programming, sound recordings, and other copyrighted works.
A recent Princeton University study found that approximately 99 percent of 1,021 BitTorrent files reviewed violated copyright. It is true that P2P's percentage share of total traffic is down from previous years, but in large part this is attributable to increased use of streaming services and cyberlockers as means for making stolen copyrighted materials available.
McAfee estimates that the number of "live, active sites delivering illegitimate content" has sextupled since 2007.
The coalition complained that the Digital Millennium Copyright Act, the law that offers Internet service providers a safe harbor from copyright liability, offers companies too many loopholes. They say that the way the law reads now, ISPs have too much of "an excuse to do nothing to combat pervasive and even blatant infringement."
Elsewhere in the report, the coalition used Google as an example of a company that once resisted requests for greater antipiracy efforts but is now moving in the right direction. Last week, Google announced it would stop doing business with members of AdSense, the advertising vehicle that pays sites for posting ads on its pages, if they were found to be trafficking in pirated content. Google also said it would be quicker to remove pirated links from its search results once notified by copyright owners.
The coalition noted, however, not every search engine is cooperating.
"Even though highly effective automated systems for matching online content to copyright reference databases are readily available and are currently in use by some service providers," the coalition wrote, "other providers feel no obligation to implement them."