Today, Future of Music Coalition checked out the State of the Net Conference — an annual event in Washington, DC hosted by the Advisory Committee to the Congressional Internet Caucus.
State of the Net (or SOTN, as known to the Twitterverse), examines current issues at the intersection of technology and policy. Throw some music in there, and we’re good to go.
We’ve attended this event before, and are always impressed at the healthy mix of tech experts, legal eagles and wonks it attracts. This year was no exception.
SOTN (which runs through Wednesday, Jan. 19) featured fascinating conversations about everything from Wikileaks to internet privacy. We were particularly interested in a panel about intellectual property enforcement online. This is because copyright — including music — is a part of intellectual property, and there’s been a lot of debate about how it fits in with that whole internet thing. Ten-plus years of debate, actually. But who’s counting?
FMC is very much pro-intellectual property. In fact, we want more artists to have the ability to use their copyrights to grow their careers and establish revenue streams around their creativity. We especially like it when musicians are able to do so without having to negotiate with tons of gatekeepers. Which is why we’ve always been so into the internet and all the amazing innovations it has inspired.
But back to SOTN. The panel in question was called “Rooting Out Online Copyright Pirates with COICA: Will it Work?” Attempting to answer that question were Daniel Castro, Sr. (Analyst, The Information Technology & Innovation Foundation), Dan Kaminsky (Chief Scientist, Doxpara), Andrew Pincus (Partner, Mayer Brown LLP), David Sohn (Sr. Policy Counsel and Intellectual Property & Technology Project Director, Center for Democracy & Technology) and moderator Greg Piper, (Correspondent, Warren Communications).
Now, before we get ahead of ourselves: COICA is one of those odd-sounding acronyms for a piece of legislation, in this case the Combating Online Infringements and Counterfeits Act (S.3804). The bill was introduced in the last Congress by Senator Patrick Leahy (D-VT) and managed to make it through the Senate Judiciary Committee with a vote of 19-0. Then Congress got busy with other stuff, and the bill moved no further.
The smart money is on COICA being introduced in the new session, which is probably why this panel was booked.
COICA would authorize the Attorney General (and the Department of Justice) to take action against any internet domain name (note that we said name, not site or server) found “dedicated to infringing activities,” as outlined in the legislation. Debate is currently focused on handful of key points:
1. Would the law be an effective tool to combat IP infringement?
2. How would it affect underlying internet structures?
3. Is it consistent with US interests in promoting global internet freedoms?
So you know, easy questions.
To understand what COICA would do, it’s important to consider some essential aspects of how the internet functions, namely the Domain Name System. Daniel Castro, who spoke on the panel, previously posted a solid explanation of DNS (note: he is a COICA supporter):
DNS is like a global phonebook for the Internet providing users a number that corresponds to each name. Before a user can visit a domain name (e.g. www.itif.org), his or her computer must first discover the IP address associated with that web address (e.g. 18.104.22.168). DNS servers provide this service to users by translating domain names into IP addresses through a recursive process. Most users rely on the DNS servers of their local ISP for this service and it is these DNS servers that are the principle target of COICA. If a site appeared on the government blacklist, e.g. www.watch-pirated-videos.tv, then the DNS servers would be instructed to no longer resolve an IP address for that domain. And without this IP address, users cannot visit these infringing websites.
And that is one aspect of what COICA, if passed, would do. It would also require financial transaction providers (like credit card companies) to no longer process payments for infringing sites, as well as compel advertisers to stop placing ads on said sites.
So what’s the beef with this bill?
Well, some, including panel speaker David Sohn, say that the process around blocking the domain names is insufficient. Beyond questions about whether a targeted domain name has a chance to make their case BEFORE the blocking occurs (the legislation does provide for post-blocking review), Sohn’s org, CDT, points to various international concerns. As they wrote not long after the bill was introduced in 2010:
From an international perspective, we are deeply troubled at establishing the precedent that a government can seize or block a domain name, even if the registrar and registry are located in another country. The seizing and blocking contemplated by the bill could also frustrate US foreign policy, as it would call into question the US’s credibility in criticizing other countries that adopt similar means to control Internet content.
Many in the content community (such as major entertainment industry groups) support COICA for its intent to block US consumers’ access to infringing websites. The bill defines such sites as those that are “primarily designed” to infringe, and serve no other “commercially significant purpose.” But what about multipurpose sites and services? Plenty of musicians we know use sites like YouSendIt and Megaupload to send content to which they own the exclusive rights to collaborators and recording engineers down the street or across the globe. On the other hand, many of these services also allow users to upload content that clearly doesn’t belong to them (think streaming episodes of “The Big Bang Theory”). Remember, if you go after the domain name, you’re not necessarily nabbing the bad guys, but simply disrupting one of their hangouts. (Which in many instances, is perfectly appropriate.)
At the panel, Dan Kaminsky was perhaps the most outspoken in his opposition to COICA, citing its lack of effectiveness by suggesting that it takes “60 seconds” to switch to a foreign DNS server, which only superficially impacts the underlying infringement. He also said that the potential mass migration of US users to foreign DNS would undermine domestic internet security by making sensitive data available to foreign actors.
Andrew Pincus reiterated that COICA would only target sites that clearly exist only to promote infringement, and would apply “standards that hundreds of countries adhere to.” When it was suggested by Kaminsky that “when someone shoplifts, we arrest that person, not do dramatic things to supermarkets,” Pincus countered that a lot of countries aren’t so keen to play ball in helping us crack down on infringement, so we need ways to address the issue from the access side.
There was a lot of other ground covered, too, including whether the US taking a proactive role over what sites you can and can’t visit would be interpreted as a permission slip for other countries to go even further (say, for example, censoring speech). Discussion also touched on the responsibility of a DNS server to not send users to an infringing site.
FMC supports efforts to protect intellectual property online, and certainly believes that creators should have a say over the uses of their copyrights. We also think that there’s more to be done to encourage the legitimate digital music marketplace to grow and mature, which may require some new thinking around licensing and business models. We aren’t claiming to have all the answers, but we do know that access and innovation for artists is a key part of compensation in the digital era. We hope that this perspective can be entertained as decisionmakers consider ways to improve the situation for rightsholders online.
Oh, and one other thing we learned from this year’s State of the Net Conference: cybersecurity is the new black.