Yesterday, Robert Milligan and I had the wonderful opportunity to present at the 2012 ITechlaw World Technology Law Conference in Washington, D.C. We discussed the new online anti-piracy legislation and developments in the U.S. and Europe. In particular, we covered the highly controversial and failed SOPA and PIPA legislation, the new proposed CISPA and OPEN legislation, and legislation from Ireland, Spain, and the European Union (i.e. ACTA). You can access a copy of our presentation materials here.

We had great comments and questions from some of the leading technology and intellectual property law attorneys from around the world, including the U.K., Ireland, Canada, Germany, Australia, Belgium, and France.

Members of the audience generally expressed two main concerns regarding the new online anti-piracy legislation: (1) the exportation of U.S. intellectual property law on foreign countries, and (2) the increased liability of intermediaries. For example, some argued that it was improper to increase the burdens and liabilities of intermediaries, such as Internet service providers and payment providers that are not in the business of policing copyright infringement. Audience members also noted that any proposed legislation should be an open and transparent process where the various stakeholders, including the public, should be part of the dialogue. Further, audience members expressed doubts as to whether the legislation would actually fix the problem as those in the pirate community have been very adept at putting up new infringing sites after earlier sites have been shut down.  

The content providers are the major proponents of the new anti-piracy legislation. The proliferation of the internet, the increase in bandwidth, and the perceived lack of effective enforcement mechanisms are believed to have fostered the rise in online piracy. This has led content providers to become more aggressive in their anti-piracy efforts.

One interesting note is that while the Motion Picture Association of America (MPAA) is an understandably strong proponent for the recent anti-piracy legislation, the Recording Industry Association of America (RIAA) has been a relatively quiet supporter. The difference is believed to be a result of consumers’ increased use of online music stores, such as iTunes, which have decreased the amount of online music piracy. The MPAA is still struggling with online movie sales.

Another interesting aspect of the recent anti-piracy developments is that some audience members argued that the changes are proposed by a relatively small industry – content providers – and will increase the burdens and costs on the significantly larger internet industry.

We also learned that the Ireland anti-piracy legislation, which was recently passed, may have been incorrectly perceived as SOPA 2.0 or the “Irish SOPA.” Ireland had previously failed to enact certain provisions of the Copyright Directive. Thus, Ireland did not enact novel and extreme anti-piracy legislation, but simply updated its copyright laws to conform to the rest of Europe, at least according to one audience member.

During the dialogue, most everyone recognized that a solution is needed to combat piracy, but many expressed their doubts that the currently proposed U.S. and European legislation will be sufficient. There was also at least an acknowledgment by some of the audience members that some portions of the various anti-piracy legislation may have some value in drafting future legislation.