Congress can’t just focus on copyright infringement to protect inventors

If chasing copyright infringement is a game of Whack-A-Mole, chasing counterfeiters is like a game of Whack-A-Mole on steroids.


A recently released report from the Information Technology and Innovation Foundation argues that although there is no easy solution to the ongoing scourge of digital content piracy on the internet, we need voluntary agreements between copyright holders and payment processors, advertising networks, domain name registrars, search engines, and other stakeholders to serve as an important complement to legislative and other efforts by governments.

“Experience shows that legitimate players with an interest in preserving an innovative, prosperous digital economy can work together to make life harder and costlier for illicit operators who profit from piracy,” said ITIF Associate Director for Trade Policy Nigel Cory, who authored the report. “These voluntary agreements target the supply side of the digital piracy equation, such as by getting sites with infringing content blocked or removed so they can’t operate and profit as if they were legitimate businesses.”

ITIF explains that voluntary agreements among stakeholders are not a replacement for government action and that governments may need to legislate to address certain aspects of the digital piracy problem. Notwithstanding, ITIF believes that history demonstrates that robust, cooperative and voluntary efforts have a meaningful effect on consumer behavior, which will reduce piracy and increase legal sales.

Will industry step In?

The position of the ITIF is fundamentally correct. At least in the United States, Congress always prefers when industry comes together to solve industry-wide problems without the need for government intervention—or at least comes together in a way that minimizes the need for a heavy-handed government activism.

Sports fans recall members of Congress holding public hearings admonishing and publicly scolding commissioners and other representatives of the major sports leagues regarding performance-enhancing drugs a number of years ago, with some members specifically coming out and saying that either the leagues needed to solve the problem or Congress would step in and solve the problem for them. Ultimately, the leagues solved the problem by enacting much stricter drug testing policies, with much heavier penalties handed out for those caught using performance-enhancing drugs. Congress stood down because the industry acted.

With respect to digital piracy, the question is whether and to what extent the industry will be able to respond in a cooperative and comprehensive manner to any level that will make a difference, and whether it is too late. Rampant digital piracy is not new, no truly acceptable industry solution has surfaced, and major technology corporations have been commercializing copyright infringement.

The monetization of copyright infringement has been at the root of the problem and has caused angst and distrust. These companies have processes in place to address copyright infringement—but in the meantime, while the infringing content is on their platforms, they monetize the infringement. Ultimately, when tortious accounts are shuttered the platforms still retain their share of advertising revenue generated while the infringing content was in place.

The game of chasing infringers on platforms goes on like Whack-A-Mole. And although a different issue, other technology giants are similarly making billions of dollars in what can be described only as being complicit with widespread counterfeiting of epic proportions. And if chasing copyright infringement is a game of Whack-A-Mole, chasing counterfeiters is like a game of Whack-A-Mole on steroids.

Time to act

Industry groups coming together to work out solutions that work for the industry is good politics because it can keep politicians on the sidelines and achieve a solution the industry itself dictates and accepts. Unfortunately, history shows that with this issue, the industry has had many years to come to suitable voluntary, collaborative agreement that didn’t require congressional action.

It is long past time for Congress to take action to protect content creators in the 21st-century digital economy.