by Michelle Davis, FMC policy intern 

[UPDATE: Read our written testimony before the committee here.]

On Wednesday September 18, The House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing to discuss “The Role of Voluntary Agreements in the U.S. Intellectual Property System.”

Uh-oh, did we lose you already? Hearings always sound boring; they don’t have punchy names like SXSW panels, but we promise this one was relevant to musicians, fans, and Internet users. Keep reading.

“Voluntary agreements” basically refer to private sector deals, initiatives and agreements that aren’t mandated by the government, even where the government may play a facilitating role. This hearing was an opportunity for lawmakers to consider what approaches to intellectual property (IP) protection have thus far been implemented, with an emphasis on not just protecting these rights, but balancing enforcement with free speech and fair use principles.

Voluntary agreements can arise for a variety of reasons. When stakeholders can come together to identify shared interests and identify potential solutions, it may result in an approach that’s more collaborative and flexible than a legislative mandate. But there are also strictly practical reasons for pursuing voluntary initiatives. Partisan gridlock in Congress can mean that passing any law is a challenge these days. If, say, the executive branch can get parties to the table, there may be a clearer path to implementation. Of course, voluntary agreements also allow corporations to avoid regulations that they may find constraining or objectionable. And the threat of legislation can be an incentive towards participation.

Voluntary agreements have been used in a variety of intellectual property enforcement contexts: some music piracy-related, and others having to do with broader IP issues—from counterfeit handbags to potentially dangerous fake prescription drugs. (It’s worth noting that this range of concerns doesn’t suggest moral equivalency; merely that collaborative approaches have been used to try and address them all.)

Five expert witnesses came in to share testimony on the progress of their voluntary agreements: Robert Barchiesi (president, International AntiCounterfeiting Coalition), Cary Sherman (chairman and CEO of the Recording Industry Association of America), Randall Rothenberg (president and CEO of Interactive Advertising Bureau), Jill Lesser (executive director for The Center of Copyright Information) and Gabriel Levitt (vice president of PharmacyChecker.com).

Noticeably missing from the conversation were indie labels and artists—as well as major Internet players such as Google—whose absence was noted by several Congressmen and all of the witnesses. Google’s recently-released “How Google Fights Piracy” has been met by MPAA’s report on “The Role of Search in Online Piracy,” which gives you a sense of where the conversation stands in late 2013. For their part, both the RIAA and the IAC in particular would like Google to do more—from removing “rogue sites” from the top of their search results to “whitelisting” sites that offer legitimate content (or at least sites recognized by rights holders as legit). This is an area where speech bumps up against enforcement, and one that seems to provoke strong reactions based on one’s place in the debate.

When it came time for the Q&A, the Democrats on the subcommittee essentially inquired, “what more can the government do to help?” Republicans seemed to ask, “how can we keep government from interfering further?” The answers across the board reflected that, at the very least, current voluntary agreements are going a heck of a lot better than the attempted “involuntary” agreement that was the Stop Online Piracy Act (SOPA). Witnesses reasoned that consensus solutions allow more flexibility than wading through the onerous legislative process, as well as better-aligned incentives and freedom to compromise. (As Representative Ted Poe noted, “That’s something we don’t do to well here in Congress—compromise.”) Lesser said there were people on her consumer advisory board that “were sitting across the table from the content industry during the renowned SOPA debate” who are now “at a table with us envisioning and constructing a program that we think is working well.”

While voluntary agreements can be a good jumping-off point, government nudges and oversight may have their place. “Do not underestimate the value of government encouragement,” said Sherman, adding that the government should also take an active role in promoting best practice guidelines in international trade agreements and treaties. We’d add that public accountability is also crucial—abuses don’t just happen on the technology or user side, after all.

Here are the voluntary agreements discussed by each witness:

The Center of Copyright Information (CCI)

Copyright Alert System: A product of negotiations by the nation’s largest Internet Service Providers (ISPs) along with the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA), this is an “entirely voluntary educational initiative that enables copyright holders to notify consumers when their internet access accounts are alleged to have been used illegally to download and share copyrighted movie, music or TV shows.” The main takeaway here is Lesser’s emphasis that this program is purely educational and not punitive. Nobody is losing their internet connection or going to jail, no matter how many alerts they rack up.. There is a mediation process for users who feel they have been alerted in error, although the incentive for going through mediation when you aren’t facing any punishment isn’t really clear, and the emphasis on tracking only “whole works” alleviates fair use concerns. The other key point is that this program has only been in action for six months, so they haven’t gotten to the impact assessment stage. Lesser said the CCI’s next step will be to assess how/if the alert system has affected the behavior of casual infringers.

Educational Initiatives:  Lesser said that based on CCI’s research, they believe “one of the most important audiences for [their] educational efforts is young people.” Thus CCI’s copyright curriculum, “Be a Creator,” which is being piloted in California this academic year. Again, we’ll have to wait until the program has reached an evaluation phase to get a sense of its progress.

Interactive Advertising Bureau (IAB)

Quality Assurance Guidelines: Best Practices for online ad networks were announced in July by the White House Office of Management and Budget. The hope is that if torrent sites and other infringers can’t make money off ad sales, they’ll start to disappear.  Online advertising is a big business, so the IAB’s self-regulation efforts to combat infringement could have a significant impact. Rothenberg focused on the Guidelines’ ability to “establish trust between buyers and sellers.” Basically, Rothenburg believes that an ad on an illegitimate site makes an unfavorable impression on the consumer, and so that’s incentive enough to keep ads off websites involved in intellectual property violations. The Guidelines have also been recently been updated to include an option for rightsholders to  lodge complaints to the IAB. This should help the IAB take action, so they don’t have to do all the policing themselves.

International AntiCounterfeiting Coalition (IACC)

Payment Process Program: This is the classic “follow-the-money” approach that we keep hearing about. In 2012 IACC partnered with folks like Visa, MasterCard, PayPal, Discover, American Express, Western Union and many more with the goal of cutting off payment to criminal counterfeiters. So far, says Barchiesi, nearly 7,500 websites have been referred for investigation, “resulting in the identification of over 26,000 payment channels and the termination of 2,100 individual counterfeiter’s merchant accounts.” A problem now is that counterfeiters are using alternative payment methods, such as virtual currencies; we have yet to see how the IACC will respond to these trends. And while Barchiesi focused on counterfeit goods, it’s worth noting that payment processors can be a way of responding to copyright infringement as well.

Recording Industry Association of America (RIAA)

Sherman underscored the RIAA’s role in collaborating with the ISPs, advertisers and payment processors already mentioned by the other witnesses, and he included a bit about domain name registries. Additionally he covered:

User Generated Content: Sherman praised the work of UGC services working together to eliminate infringing works through the use of Content identification technology and the removal or blocking of links to infringing material a strategy used most notably by YouTube (owned by Google). Yet at the same time, he lamented what he saw as Google’s inaction when it comes to thwarting infringing material found via its search engine. 

PharmacyChecker.com

Script checker: Online pharmacies are outside our purview, but Levitt’s testimony did serve to provide one example of how a voluntary agreement can go sour without some government oversight. Levitt says Center for Safe Internet Pharmacies, which was meant to flag rogue sites, is now part of a “scare campaign conflating all non-US pharmacies with rogue pharmacies.” So, basically they are getting inundated with false or misleading concerns about pharmacies that, despite being foreign, are totally legit. Although the parallel wasn’t drawn at the hearing, this sounds a lot like the problem of invalid notice-and-takedown requests sent to hosting services.

It’s important to remember that hearings don’t necessarily produce action items. As Representative Mel Watt said in his closing remarks, “at some point we’re actually going to have to do something… about it,” which suggests that voluntary agreements alone may not be a silver bullet for every enforcement issue. Politically, though, they certainly represent progress—especially for those, like us, who made it through some pretty intense days during the SOPA debates. Let’s not relive those anytime soon, OK?

You’ll be able to here more about this subcommittee’s work and goals moving forward directly from Rep. John Conyers at the Future of Music Summit on October 28-29 in DC.  Get your tickets today!