Rogue Sites Legislation and the DMCA

by Paul Hortenstine 11/15/2011 07:22 (UTC-08:00) Pacific Time (US & Canada)

There has been lot of discussion recently about important rogue sites legislation in Congress.   In particular, there has been debate about how this legislation would change current copyright law, especially the Digital Millennium Copyright Act (DMCA).  

An important part of the DMCA gives legally operating websites safe harbor when they remove material that infringes on copyrights after receiving notification.   Rogue sites legislation does nothing to legally operating websites.  It continues to give safe harbor to legally operating sites under the DMCA.   Rogue sites legislation targets foreign sites that are trafficking in stolen and counterfeit goods and content. 

On Wednesday, the House Judiciary Committee will hold a hearing on rogue sites legislation, the Stop Online Piracy Act (H.R. 3261).  This bill and similar legislation in the Senate, the PROTECT IP Act (S.968), will preserve American jobs and target foreign websites that steal and profit from counterfeit goods and stolen creative content like books, movies and music.  Both bills have bipartisan support and are backed by a broad coalition of business and labor groups. 

Today, a group of companies—AOL, eBay, Facebook, Google, LinkedIn, Mozilla, Twitter, Yahoo and Zynga—released a letter opposing rogue sites legislation that specifically cited the DMCA safe harbor provisions:

“We are very concerned that the bills as written [H.R.3261 and S.968] would seriously undermine the effective mechanism Congress enacted in the Digital Millennium Copyright Act (DMCA) to provide a safe harbor for Internet companies that act in good faith to remove infringing content from their sites.”

And on Monday, Markham Erickson, Executive Director of Net Coalition, wrote in The Hill’s Congress Blog on rogue sites legislation and the DMCA, stating, 

“Both bills gut the Digital Millennium Copyright Act (DMCA), which for over a decade has helped Internet companies grow and flourish.  The DMCA is one of the big reasons companies like Facebook, YouTube, and Twitter weren’t crushed in their early days by harassing lawsuits.”

The DMCA and other copyright laws have given us the Internet of today, alive with innovation, commerce and free speech.  But rogue sites legislation does not undermine or “gut” the DMCA.  Again, rogue sites legislation does nothing to change the DMCA’s safe harbor provisions, which will continue as law if rogue sites legislation is passed. 

Rogue sites legislation targets foreign rogue sites.   It goes after sites that are dedicated to pirating copyrighted works and peddling counterfeit goods.   Legally operating sites will continue to have the same protections they have under DMCA.

What is missing from this debate is how the DMCA is ineffective in targeting foreign sites dedicated to selling pirated content and counterfeit goods.  The DMCA is often effective in removing copyrighted material from legitimate websites but it is not effective in targeting foreign rogue sites that are designed to sell pirated content. 

The DMCA can be an effective tool in notifying website operators of copyright infringing materials made available through their websites.  Compliance, of course, varies.  The DMCA is most helpful to copyright holders only in cases in which the website is not primarily designed or dedicated to infringing activity.  Legitimate websites with low levels of copyright infringement can be managed through DMCA notices and adherence to a reasonable DMCA policy. 
 
However, rogue websites that are designed to allow users to easily and reliably locate copyright infringing material commonly ignore DMCA requests or only comply after long periods of time after illegal files are repeatedly viewed.  The DMCA also does not fare well in addressing the large scale rogue websites that host millions of files and receive hundreds of thousands of uploads daily.  Copyright holders simply cannot locate all the illegal files uploaded to these websites despite costly and time consuming efforts to scan the Internet for these files.  The illegal files that are reported using the DMCA are commonly re-uploaded to the same websites within minutes and without restriction.  Many large scale rogue sites even furnish illegal uploaders with notice that files have been taken down or tools to check whether their files have been taken down so that the same files can be re-uploaded.  This creates a situation where a website can act on DMCA notices, but still enjoy high levels of copyright infringement and the resulting profit from this Internet traffic.

So, rogue sites legislation creates new tools to go after these foreign rogues sites dedicated to criminal activity, which the DMCA has had limited success in targeting.  Rogue sites legislation targets foreign online criminals and their access to the U.S. market.  Operators of legitimate websites should welcome this legislation. 

Categories: Content Protection, Copyright, Policy

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The MPAA Honors President Ronald Reagan

by MPAA 11/14/2011 19:07 (UTC-08:00) Pacific Time (US & Canada)

Tonight at the Hay Adams hotel overlooking the White House, the MPAA and the Centennial Celebration of the Ronald Reagan Presidential Foundation held a reception honoring the 100th anniversary of President Reagan’s birth.  President Reagan is a unique figure in American history who seamlessly transitioned from a movie set into the political arena while never losing his connection to the American people. The motion picture industry undeniably shaped Ronald Reagan’s role as president and forever changed the face of modern political communication.  From his time in Hollywood to his days in the White House, President Reagan’s career spanned over fifty roles as an actor, six terms as president of the Screen Actors Guild, television host, Governor of the state of California, and President of the United States.

General Colin Powell, Jeff Bewkes, Chairman and CEO of Time Warner, Jim Gianopulos, Chairman and CEO of 20th Century Fox, Ron Meyer, President of Universal Studios, Fredrick Huntsberry, COO of Paramount Pictures, Ken Duberstein, former White House Chief of Staff, and Fred Ryan, President of the Reagan Foundation joined Senator Chris Dodd, Chairman and CEO of the MPAA to pay tribute to the 40th president's contribution to the motion picture industry. 

Here are a few photos from the event:

 

Leading Public Safety and Law Enforcement Groups Support Rogue Sites Legislation

by Paul Hortenstine 11/14/2011 12:07 (UTC-08:00) Pacific Time (US & Canada)

Today, fifteen leading groups from across the criminal justice system joined together in writing a letter to members of Congress that urged them to support rogue sites legislation, the PROTECT IP Act and the Stop Online Piracy Act.  They joined a broad and growing coalition that backs rogue sites legislation, which will be the subject of a hearing by the House Judiciary Committee on Wednesday. 

The PROTECT IP Act (S.968) in the Senate and the Stop Online Piracy Act (H.R. 3261) in the House have bipartisan support and will preserve American jobs and target foreign websites that steal and profit from counterfeit goods and stolen creative content like books, movies and music. 

The letter states:


“We the undersigned associations representing the state and local criminal justice community write to urge your support for legislation that would strengthen U.S. law enforcement’s capacity to take action against foreign ‘rogue’ websites that traffic in stolen and counterfeit American-made products which pose a severe risk to health and public safety and which help to finance criminal activity within our borders.”

“While counterfeiting and content theft are not new, the proliferation and extent of these activities are unprecedented today. Criminals have turned to the Internet, abusing its virtually unlimited distribution opportunities to expand their illegal activities and increase their profits. Many of these sites are based overseas yet rely on U.S. Internet service providers, search engines, payment processors, and advertising services to reach U.S. consumers. Many of these sites deceive Internet users into thinking they are legitimate by accepting major credit cards as forms of payment and featuring advertising from well-known U.S. companies. And they are succeeding; a recent study found that just a small sample of 43 rogue sites generate over 53 billion visits a year.”

The letter was addressed to Senate Judiciary Committee Chairman Patrick Leahy and Ranking Member Charles Grassley and House Judiciary Committee Chairman Lamar Smith and Ranking Member John Conyers. 

The letter was organized by the National Criminal Justice Association and signed by the National Sheriffs Association, Major County Sheriffs, Major City Chiefs, National Center for Victims of Crime, National Fusion Center, National District Attorneys Association, Council of State Governments, International Union of Police Associations, Association of State Criminal Investigative Agencies, National Troopers Coalition, National Domestic Preparedness Coalition, National Association of Prosecuting Attorneys, National Narcotics Officers Association Coalition, and National Association of State Chief Information Officers.

This letter adds to the support already expressed by other public safety and emergency responder groups, including the Fraternal Order of Police, International Association of Fire Fighters, Congressional Fire Services Institute, state attorneys general, EMS and emergency management associations, campus law enforcement administrators, and private sector security.

Categories: Content Protection, Policy

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Growing Support for Rogue Sites Legislation in Pennsylvania

by Paul Hortenstine 11/11/2011 11:49 (UTC-08:00) Pacific Time (US & Canada)

Support for rogue sites legislation keeps growing in Pennsylvania.   This week, the mayor of Pittsburgh joined Philadelphia’s mayor in pledging his support for legislation that targets rogue sites and preserves jobs. 

The PROTECT IP Act (S.968) in the Senate and the Stop Online Piracy Act (H.R. 3261) in the House have bipartisan support and will preserve American jobs and target foreign websites that steal and profit from counterfeit goods and stolen creative content like books, movies and music.

On Wednesday, Pittsburgh Mayor Luke Ravenstahl wrote a letter in support of the PROTECT IP Act to Senators Robert Casey (a cosponsor of the bill) and Pat Toomey as well as Representative Mike Doyle.  He wrote,  

“When American-made products are counterfeited or stolen by foreign rogue websites (those dedicated to counterfeiting and piracy), American workers lose out on wages and benefits.  The U.S. economy loses $58 billion in annual economic output as a result of copyright theft of movies, music, packaged software and video games.  Our current economic climates does not allow for such loses.  The PROTECT IP Act addresses the threat posed to jobs and the economy by foreign-based rogue websites.”

The motion picture and television industry is directly responsible for 18,181 jobs and $756.3 million in wages in Pennsylvania, including production and distribution related jobs.  Nationally, 2.2 million American workers, from accountants to truck drivers to florists to make-up artists, have jobs that depend on the film and television industry.

Many major television and motion pictures have filmed in Pennsylvania.   Recently, big budget thrillers “The Dark Knight Rises” and “One Shot” filmed in Pittsburgh and the television show “Elixir” is currently in production.  Philadelphia has had its share of productions, including the recent hit “Limitless.”   In 2009 and 2010, a total of 34 films and 25 TV projects filmed in Pennsylvania, including “Law Abiding Citizen,” “Love and Other Drugs,” and “It's Always Sunny in Philadelphia.”

Mayor Ravenstahl joined another Pennsylvania mayor in support of rogue sites legislation. On October 20, Mayor Michael Nutter of Philadelphia wrote a letter to members of the Pennsylvania congressional delegation in support of rogue websites legislation.  He wrote,

“Intellectual property theft and the sale of counterfeit goods cause serious negative consequences in the US’s major cities. When foreign entities infringe upon the rights of US copyright holders or produce counterfeit US products, our economy suffers. Furthermore, counterfeit goods may pose more direct risks to consumers because counterfeit goods may be of such poor quality that they jeopardize the health and safety of their users.”

Rogue sites legislation is also supported by the bipartisan U.S. Conference of mayors.  In June, the conference adopted a resolution in support of rogue sites legislation:

“[T]he U.S. Conference of Mayors calls upon Congress to pass the PROTECT IP ACT and S. 978, as much needed and important legislative initiatives to increase the ability of U.S. law enforcement to go after profit-making entities who willfully and knowingly steal intellectual property, with little or no regard for the cost in dollars, jobs, U.S. creativity and ingenuity, and revenue for cities across America.”

Categories: Content Protection, Job Production, Policy

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Rogue Sites Dangerous to Consumers Buying Prescription Medication Online

by Paul Hortenstine 11/11/2011 07:25 (UTC-08:00) Pacific Time (US & Canada)

An opinion piece in the Washington Times shows just how dangerous rogue sites are to consumers purchasing medicine online and it urges passage of the Stop Online Piracy Act to help curb the trafficking in tainted medicine.  Millions of Americans enjoy the convenience of purchasing prescription medicines over the Internet.   They search online for a pharmacy that will fill and mail their prescription.  However, they are often taking advantage of by rogue sites that appear to be legitimate.  These sites knowingly sell counterfeit drugs and tainted medicine that has unfortunately led to debilitating sickness and even death. 

The Stop Online Piracy Act (H.R. 3261) in the House and the PROTECT IP Act (S.968) in the Senate have bipartisan support and will help target rogue sites profiting from counterfeit medicine and stolen creative content like books, movies and music.  The legislation will also preserve the 2.2 million American jobs of people who work in the television and film industry. 

In the Washington Times article, Libby Baney of the Alliance of Safe Online Pharmacies writes that rogue sites have affected her family:

“In December 2009, my sister Ali decided to refill her supply of allergy medication, a drug she had taken for years, by using what she assumed was a legitimate Internet site. On Christmas Eve, after taking the drug, she became violently ill and suffered intense migraine headaches. Ali had thought she was buying her usual prescription medication. Unfortunately, her trusted medicine is not what she received.  After Ali recovered, she learned that the website she used did not meet the rigorous Verified Internet Pharmacy Practice Sites (VIPPS) accreditation standards put in place by the National Association of Boards of Pharmacy (NABP).”

And the money used to purchase medication on these rogue sites often goes to fund organized crime:

“The Internet allows these illegitimate online drug sellers to operate without much fear of consequences. The small packages of fake drugs are often shipped through three or four locations, masking their true origin and making them hard to track or control. Even more chilling is that these rogue drug sites often trace back to complex organized criminal networks that are manufacturing unregulated and dangerous medicines and are knowingly peddling these dangerous drugs to consumers around the world. Rogue Internet drug sites are often a major source of funds for criminal networks.”

Rogue sites also enable people who buy medication without a prescription:

“Recent research conducted by the Partnership at Drugfree.org found that 1 in 6 Americans - 36 million people - purchase prescription medication via the Internet without a valid prescription. When consumers purchase from a website that does not adhere to U.S. law governing the use of prescriptions, they bypass all the protections put in place to protect them; namely, that the medicines are safe and have been prescribed by a physician, and that the prescription has been dispensed by a licensed U.S. pharmacist in a licensed U.S. pharmacy.”

Baney urges passage of the Stop Online Piracy Act to help target these rogue sites: 

“The bill addresses a number of important intellectual-property issues. It also helps protect consumers against the public health threat of illicit sales of medications online. The bill encourages private companies to stop doing business with illegal online drug sellers that endanger public health. Included are companies that host these sites, provide associated advertising or help facilitate their payment transactions. If enacted, this legislation could help shut down the worst-of-the-worst rogue Internet drug sellers.”

Counterfeit products on rogue sites are also a danger to the military.  This week, the Senate Armed Services Committee held a hearing on its investigation into counterfeit electronic parts in the Department of Defense supply chain.  The defense industry is very susceptible to counterfeit parts because many defense systems rely on electronic parts that are no longer produced by the original manufacturer.   Defense contractors purchase replacement parts from independent sellers, often over the Internet.

In March, the committee began an investigation into the defense supply chain—including defense contractors and subcontractors—about the unknowing purchase of counterfeit components for such things as aircraft and missile systems, often through the Internet.  So far, it has found over 1 million suspect counterfeit electronic parts that were purchased.   More than 70% of the counterfeit parts originated in China.

Categories: Content Protection, Policy

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Rogue Sites Legislation Will Help Preserve Jobs in North Carolina and New Mexico

by Paul Hortenstine 11/10/2011 11:34 (UTC-08:00) Pacific Time (US & Canada)

The film and television industry supports 2.2 million middle-class people in all 50 states.  They work behind the scenes in production, and in small businesses like equipment rental, transportation, construction and food service. 

Currently, there is legislation in Congress that will preserve these jobs while targeting those who profit from selling stolen content.  The PROTECT IP Act (S.968) in the Senate and the Stop Online Piracy Act (H.R. 3261) in the House have bipartisan support and are backed by businesses and labor groups.   The legislation will preserve American jobs and target foreign websites that steal and profit from counterfeit goods and stolen creative content like books, movies and music.

Two articles this week illustrate the jobs that rogue sites legislation will help preserve. 

In North Carolina, the blockbuster franchise “Iron Man” will shoot its third installment in Wilmington next May, “creating an estimated impact of more than $80 million while creating 550 crew jobs.”  The motion picture and television industry is responsible for 9,280 direct jobs and $200.5 million in wages in North Carolina, including both production and distribution-related jobs. Over 2,800 of the jobs are production-related.

The Wilmington based Star News stated that “North Carolina's film incentives program is essential to keep the industry flourishing and competitive, five experts said during a discussion Wednesday morning.”  And “government and industry officials have touted [tax incentives] as a key ingredient in landing ‘Iron Man 3.’”  In North Carolina, tax incentives include a 25% credit of up to $20 million on productions that spend more than $250,000 in the state. From 2009 to 2010, 15 films and television projects were based in North Carolina, including the television show “One Tree Hill.”

New Mexico has also recently benefited from film and television productions. The New Mexico Business Weekly reported on current movie and television productions in New Mexico that are employing hundreds of workers and their large economic impact.  From July 2010 to June 2011, 21 major productions shot in New Mexico.   They spent $232.1 million directly, which had a financial impact of $696.3 million.   About $73.8 in tax credits were awarded during that time period as part of New Mexico’s 25 percent credit on production expenditures.  The paper also reported that “Since 2003, there have been 162 major productions shot here with a direct spend of $1.4 billion, according to the state film office.”  Recent major production in New Mexico includes the television show Breaking Bad and the movies The Avengers and Cowboys & Aliens.


There is a Western television show in production:
“’Tin Star,’ a pilot episode of a Western drama series, has been filming in the state since late October, says a Nov. 7 release from the New Mexico Film Office.”  The production will run through early November and is shooting in Galisteo, La Cienega and the Valles Caldera. It is employing about 130 New Mexico crew members and more than 350 principal actors and extras.

And a film is shooting in New Mexico:
“And the Film Office announced the an independent feature film, ‘Stars,’ is shooting in Santa Fe, Española, Galisteo and Pecos through late November. It will employ about 45 New Mexico crew members and more than 125 principal actors and extras.”

Categories: Content Protection, Policy

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First Amendment Expert: Stop Online Piracy Act Upholds Free Speech

by Paul Hortenstine 11/10/2011 10:32 (UTC-08:00) Pacific Time (US & Canada)

This week, noted First Amendment attorney Floyd Abrams wrote that rogue sites legislation in the House will protect free speech.  This follows a letter Abrams wrote in May that affirmed that rogue sites legislation in the Senate upholds the First Amendment.  

The Stop Online Piracy Act (H.R.3261) in the House and the PROTECT IP Act (S.968) in the Senate would, if passed, target foreign rogue sites that knowingly and deliberately engage in the illegal distribution of stolen content, including movies and television shows, for profit.  The legislation will preserve the 2.2 million jobs of American workers who depend on the film and television industry.

On Monday, Abrams sent a letter to House Judiciary Chairman Lamar Smith and Ranking Member John Conyers reaffirming that the Stop Online Piracy Act in no way imperils the First Amendment.  He wrote,

“Any legislative efforts to limit what appears on the Internet, or to punish those who post materials on it, requires the closest scrutiny to assure that First Amendment rights are not being compromised. That is true of all limits on speech, and it is no less true of the Internet. But the Internet neither creates nor exists in a law-free zone, and copyright violations on the Internet are no more protected than they are elsewhere.

“The notion that adopting legislation to combat the theft of intellectual property on the Internet threatens freedom of expression and would facilitate, as one member of the House of Representatives recently put it,  ‘the end of the Internet as we know it,’ is thus insupportable. Copyright violations have never been protected by the First Amendment and have been routinely punished wherever they occur, including the Internet. This proposed legislation is not inconsistent with the First Amendment; it would protect creators of speech, as Congress has done since this Nation was founded, by combating its theft.”

Abrams wrote the letter on behalf of the American Federation of Television and Radio Artists (AFTRA), the Directors Guild of America (DGA), the International Alliance of Theatrical and Stage Employees (IATSE), the Screen Actors Guild (SAG) and the Motion Picture Association of America. 

Abrams also concluded that the PROTECT IP Act in the Senate upholds the principles of free speech.   In May, he wrote a letter to Judiciary Committee Chairman Patrick Leahy, Ranking Member Charles Grassley, and Senator Orrin Hatch that the PROTECT IP bill follows established free speech laws.

Categories: Content Protection, Copyright, Policy

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Counterfeit Military Parts "Threaten the Safety and Mission Readiness of Our Armed Forces"

by Paul Hortenstine 11/09/2011 10:28 (UTC-08:00) Pacific Time (US & Canada)

Yesterday, the Senate Armed Services Committee held a hearing on its investigation into counterfeit electronic parts in the Department of Defense supply chain.  The defense industry is very susceptible to counterfeit parts because many defense systems rely on electronic parts that are no longer produced by the original manufacturer.  This hearing illustrated the importance of passing rogue sites legislation to further protect our military and consumers from purchasing counterfeit goods. 

Rogue sites legislation, the PROTECT IP Act (S.968) in the Senate and the Stop Online Piracy Act (H.R. 3261) in the House, will preserve American jobs and target foreign websites that steal and profit from counterfeit goods and stolen creative content like books, movies and music.

In March, the committee began an investigation into the defense supply chain—including defense contractors and subcontractors—about the unknowing purchase of counterfeit components for such things as aircraft and missile systems, often through the Internet.  So far, it has found over 1 million suspect counterfeit electronic parts that were purchased.   More than 70% of the counterfeit parts originated in China.

At the hearing, Chairman Carl Levin said, “The systems we rely on for national security and the protection of our military men and women depend on the performance and reliability of small, highly sophisticated electronic components.” He added, “The failure of a single electronic part can leave a soldier, sailor, airman, or Marine vulnerable at the worst possible time.  A flood of counterfeit electronic parts has made it a lot harder to have confidence that won’t happen.” 

And Ranking Member John McCain stated, “These counterfeit parts threaten the safety and mission readiness of our armed forces because they are unreliable. They may work for a short time, but we do not know for how long, how well, and what will happen when they fail.”

As this hearing showed, foreign rogue sites are a danger to our national defense and our brave military men and women in uniform. Rogue sites also hurt our economy and cost us jobs.  Senator McCain is a cosponsor of the PROTECT IP Act, part of a bipartisan coalition of 39 senators who have signed up as cosponsors to the bill that is sponsored by Senator Patrick Leahy.  The legislation will help target foreign sites including those that sell counterfeit military parts. 

Back in July, The Daily Caller published an article by Bob Calvert that listed the important reasons to pass the PROTECT IP Act.  He wrote,

“In January 2010, a U.S. Department of Commerce study of the military component supply chain for Defense Department agencies found that the number of counterfeit electronics entering the system increased from 3,868 incidents to 9,356 between 2005 and 2008. The study was conducted because Defense Department officials were worried that more and more counterfeit and defective electronics were finding their way into the Pentagon’s vast supply chain in ways that could affect the reliability of weapons. Unfortunately, this is the grim reality that we must confront. This situation is confounded by the availability of counterfeit products through rogue websites. 

Rogue websites steal American intellectual property and are dedicated to trafficking counterfeit products and digital theft. They dupe consumers, steal our jobs and threaten the vibrant Internet marketplace. If given the opportunity, rogue websites will sell military components and electronics to make a quick buck.

Fortunately, Congress is taking steps to provide new tools against these illicit activities and help protect the jobs of hardworking Americans and the vitality of our creative and innovative sectors. The PROTECT IP Act would cut off rogue sites from the U.S. marketplace by disrupting the flow of Internet traffic and money to the site and its operators. Congress should act to protect American jobs, creativity and consumers by enacting this legislation without delay.”

Categories: Content Protection, Policy, Technology

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