Content Industry Still Seeks Digital Model As Enforcement Focus Persists

In the continued absence of a new model that adequately includes them, major global media groups remain concerned over revenues lost to unauthorised file-sharing decades after the arrival of the internet, and their focus is still on enforcement and extension of their rights.

There likely will be a significant increase in public funding in the United States for IP enforcement, a content industry source told a recent gathering of US and European rights holders, academics, governmental and intergovernmental officials, adding that industry is helping to draft legislation to increase enforcement in border agreements.

Another content industry source said at the 14-15 April Fordham University-sponsored event in Cambridge, England that anti-copyright forces are most interested in the ability of others to reuse material, not so much that it has to be free. Still another said the content providers have in the past been “cornered” between people not being able to access content or it having to be free, even by “stealing” it.

“We are all working on ways to ensure people can see our content when, where and how they want to,” he said.

And there is progress toward their goal, they said. For instance, an industry representative said when the US online video website YouTube launched a couple of years ago, some 7 million people viewed a Saturday Night Live skit posted there without authorisation. By contrast, last autumn, during the US presidential election campaigns, some 10 million people watched Saturday Night Live actress Tina Fey impersonating vice presidential candidate Sarah Palin, this time on Hulu, a “legitimate” website available in the United States from NBC and Fox.

“If we build legitimate ways to get [content], the vast majority of the community will move” away from illegal download services, the representative said. Participants in the conference spoke on condition of anonymity, unless otherwise noted.

Meanwhile, many content companies continue the further escalation of the war against piracy and counterfeiting in which they see themselves engaged. This has given rise to new levels of urgency among public interest groups on preserving access to knowledge worldwide.

Some industry representatives read greater meaning into the demise of the newspaper industry, suggesting it even threatens a healthy society and the fabric of democracy. They criticised news aggregators as collecting the fees and revenues expected to go to creators, and said this harms innovation. Another source said the reliability of information is what is valuable and that this is the service provided by the established news industry.

A mobile phone industry representative said there is a need to ensure no “double-dipping” occurs among content owners and creators in their partnerships with technology providers.

Advertising, once thought to be a way to finance content like news made freely available on the internet, appears now not to be able to sustain that activity, some said.

The content industry is suffering from unpredictable demand for buying content, an industry source said. He asserted that the majority of content carried by internet service providers is considered pirated and the industry cannot provide the same markets as in the past. But he did not say that an artist looking for the broadest reach might be better off with whoever is meeting that remaining majority of demand through alternative means.

On enforcement, industry is eyeing statistics that suggest users would like less to lose internet access than to be fined for downloading illegal content. Therefore, industry should consider pursuing what they like least, an industry source suggested.

But an audience member asked that if the major media organisations are saying there is a “perception” problem about authorised and unauthorised content, it might be asked whether the problem is with the technology or the message itself.

A content industry representative summed up by saying: “It is incumbent upon us to come up with models that work.”

Cablevision Cartoon Network Case Looms

At the conference, attention was called by a US official to a case involving broadcast company Cablevision which he said has been accepted by the US Supreme Court. The case involves who has rights over temporary buffer copies made in the act of downloading content. Under the law, copyright holders have rights over “fixed” works, but it is unclear whether the briefly existing buffer copies qualify as fixed. Therefore, a key question is, how long is long enough to be fixed, the official said, and who made the copy – Cablevision or the subscriber?

“This is about issues that will pervade internet cases to come,” he said.

Study: DRM Blocking Permitted Activity

Separately, a study mentioned at the Cambridge event found that in the United Kingdom, some allowable activities online are being adversely affected by the use of digital rights management (DRM) despite the existence of technological solutions for those activities. It also found that those prevented from carrying out those legitimate activities have not use the complaint mechanism under UK law. The study was authored by Patricia Akester of the Centre for Intellectual Property and Information Law at the Cambridge University Faculty of Law. It is available here.

Patents Trolls and Captured Courts

On another front, a US federal judge at the Cambridge event commented on the issue of patent “trolls.” The “problem with the troll problem,” he said, is the proper recognition of it. Trolls have been described as patent owners who are “non-practicing entities.” But he said, “Every patent owner is a non-practicing entity” as they have many patents they do not use. His definition of a troll is one who tries to exercise minimal patent rights for maximal value. “It’s a value-damages issue,” he said.

The judge also said that introducing policy into any legal equation “automatically introduces error,” and so must be done cautiously, but that it is sometime necessary.

Another judge said that “forum-shopping” for courts in the United States is a “very severe problem,” not limited to IP issues, and that specialised courts have been “captured” by special interests of those subject to their decisions.