Fighting Piracy, Protecting Web Freedom

To some, today's fight against online music and movie piracy is merely a continuation of the battle started with the crusade against filesharing sites like Napster in the late 1990's and early 2000's. However, in more recent government efforts against web-based copyright infringement, a few new trends have emerged. For one, the latest round of domains to be seized had no warning before being taken offline. Additionally, the operators of at least a few of the sites, which the Homeland Security unit handling the investigation claims were used 'to commit or facilitate criminal copyright infringement,' seem to have some compelling evidence that they have done nothing wrong.

For example, the following was reported in The New York Times: '...after being shown the affidavit, the operator of dajaz1.com — a widely read hip-hop blog that posts new songs and videos — disputed many of the warrant’s examples of what it called copyright infringement. He said that, like much of the material on his site, the songs had been sent to him for promotional purposes by record labels and the artists. As proof, the operator, a Queens man who declined to give his real name but is known online as Splash, showed The New York Times several e-mails from record label employees and third-party marketers offering songs mentioned in the affidavit. “It’s not my fault if someone at a record label is sending me the song,” Splash said.'

Because of the circumstances of the investigations many web-freedom advocates suspect that the latest actions are merely the precursor to a controversial bill in Congress, the Combating Online Infringements and Counterfeits Act. For example, Peter Eckersley of the Electronic Frontier Foundation, a civil liberties group, was quoted in The Times piece as saying, 'It’s a troubling situation where basically any Web site that the Department of Homeland Security doesn’t like and is convinced has too much infringing material on it can just disappear overnight.'

The combination of investigations, possible lawsuits and legislative actions regarding these sites deserve careful scrutiny. There is most certainly a balance between protecting the rights of recording and film artists and protecting the rights of websites and the people who visit them. An impressive discussion of slippery slopes could be held on the topic in a law school class, but the hope here is that, despite any bumps that may arise on the way, that proper balance will be struck. The prediction here is that some combination of legislative action and judicial checks will be required before that balance is found, but that is so often the way in our system.