The Senate Judiciary Subcommittee on Intellectual Property is currently in the process of finding ways through which the U.S. can better address online piracy.
The initiative, launched by U.S. Senator Thom Tillis, aims to hear experts from various sides, to get a balanced view of the challenges and opportunities.
During a hearing of the Senate Subcommittee earlier this month, key movie industry players argued that pirate site blocking and upload filtering are viable and effective options. However, not everyone agreed with this conclusion.
The senators also heard Julia Reda, former MEP for the Pirate Party, who currently works as a fellow at Harvard's Berkman Klein Center for Internet & Society. In her initial testimony, Reda pointed out that the EU's 'indirect' upload filter requirements, which are part of last year's copyright reform, are problematic.
Reda's comments and presentation triggered several follow up questions from senators, who asked her to address some issues in more detail. These answers, which came in a few days ago, caution against stringent measures such as site blocking and upload filters.
Responding to a question from Committee Chairman Tillis, Reda stresses that instead of focusing on restrictions and legislation, the best answer to piracy lies in the hands of copyright holders and the broader entertainment industry.
"When it comes to reducing copyright infringement online, I am convinced that the availability of affordable, attractive legal streaming services is paramount," Reda writes, adding that legal options have made music piracy less relevant.
The former MEP acknowledges that piracy continues to be a major challenge in the TV and movie industries. However, she attributes this in large part to increased fragmentation and the lack of an affordable all-in-one video platform.
"While legal video streaming services have grown rapidly in popularity and revenue over the recent years, there is still a lack of comprehensive video streaming services that give users access to all the content they want to see in one place," Reda writes.
"Exclusive deals between rightsholders and streaming services are much more common than in the music industry, therefore users have to choose between a large number of different streaming services with distinct offerings. Subscribing to all major streaming services is not affordable to the average consumer," she adds.
Next up is the response to Senator Chris Coons, who asked Reda specifically about her views on website blocking and upload filtering. These measures were presented as effective anti-piracy tools by copyright holders.
Reda, however, sees things differently. While she mentions that legal scholars are best placed to evaluate the applicability in the US context, caution against site-blocking measures is warranted.
For example, it can raise free speech concerns when there is overblocking, which has happened in the EU on a few occasions.
"From a free speech perspective, it is very difficult to implement site blocking that only blocks illegal content without adversely affecting users' rights to access legal content," Reda writes.
In addition, blocking can make security measures more difficult. This includes the use of DNSSEC, which can be used against phishing attacks but uses the same re-routing techniques as website blockades.
Free speech is also a problem with upload filters, Reda warns. She points out that automated filters can't check for factors such as fair use, something even the providers of filtering tools themselves openly admit.
"I don't think there is any possibility, neither today nor in the near to medium-term future, to automate these decisions," Reda writes.
"Therefore, upload filters for copyrighted content will always lead to many instances of overblocking of legal speech, as many examples of automated notices sent under the current notice-and-takedown regime illustrate."
Instead, Reda again points out that facilitating the development of affordable legal sources is a more reliable strategy.
This is also the message in response to questions from Senator Richard Blumenthal, who asked whether there are any examples of statutes or technological tools that have proven to curb online piracy.
Instead of focusing on enforcements or restrictions, Reda once again turns the tables, highlighting that the entertainment industry holds the key.
"When tracking the history of online copyright infringement over the course of the last 25 years, the single most successful intervention to increase industry revenues and reduce copyright infringement has been the introduction of affordable, convenient legal alternatives.
"I believe that rather than a legislative intervention, the support of better legal offers for online content is the more successful strategy to curb online copyright infringement and produce new revenue streams," Reda adds.
These views are obviously one side of the debate. As we previously highlighted, copyright holders see things quite differently. It will be interesting to see if and how the Senate Judiciary Subcommittee on Intellectual Property can find some common ground.
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Julia Reda's full answers to the senators' questions are available here (pdf).
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