By: James DeSantis,

Years after the high profile legal battles between the media companies and popular peer-to-peer (P2P) file sharing sites, the specter of widespread copyright infringement continues to haunt the entertainment industry to this day.[1] There are conflicting reports as to whether Internet piracy is still growing or has plateaued with the popularity of legal streaming services like Netflix and Spotify.[2] Regardless of whether there is a national trend suggesting that the worst days of Internet piracy may be over, the entertainment industry still loses billions to illegal streaming services and torrent sites.[3] Fortunately, the recent Federal Communications Commission (FCC) decision to repeal Obama era net neutrality regulations on ISPs may allow for a novel way to combat Internet piracy.[4]

Net neutrality is the principle that ISPs should be governmentally mandated to treat all data on the Internet equally regardless of the type content.[5] Following Comcast’s successful lawsuit against the FCC in 2010, ruling that the FCC did not have ancillary jurisdiction to require ISPs to treat all Internet traffic equally, the FCC voted 3-2 to expand their authority to do just that.[6] However, on December 14, 2017, the FCC, under new administration, voted to end the very regulations that had required ISPs to treat all Internet activity the same. The net neutrality regulations are currently set to officially end on April 23, 2018.[7]

Without the FCC restrictions, ISPs will soon be capable of restricting access to specific websites without fear of governmental interference including sites engaging in copyright infringement.[8] While many free-speech and anti-censorship advocates on both sides of the political spectrum have lamented the end to net neutrality, Alexander Graham Bell, the grandfather of the telecommunications industry, perhaps said it best: that “when one door closes, another opens.” ISPs heavily rely on the entertainment industry to maintain ISP revenue from television programming should use the end of net neutrality to pursue a grand bargain with ISPs. The entertainment therefore has leverage and possibly could induce ISPs to eliminate access to illegal file sharing websites in exchange for the entertainment industry’s agreement to continue allowing ISPs to carry the entertainment industry’s channels on ISP’s television services.

A similar idea is already gaining traction North of the border with a coalition of Canadian ISPs, media content providers, and entertainment industry trade organizations, called FairPlay Canada.[9] The coalition recently filed an application with Canada’s FCC equivalent, the Canadian Radio-television and Telecommunications Commission (CRTC), asking regulators to create an “Independent Piracy Review Agency” that will identify piracy sites and order ISPs to block their customers access to the offending websites.[10] The idea being that Canada has far more to lose in the way of lost revenue and entertainment sector jobs then it stands to gain by protecting citizens access to pirating websites. FairPlay Canada’s proposal is not unlike recent attempts in the U.S. to pass similar regulations like the Stop Online Piracy Act (SOPA) that Congress has repeatedly failed to pass.[11] The main difference between this novel proposal and FairPlay Canada or SOPA and the reason why there is a greater potential for it to likely succeed, is that under the new FCC regulations no governmental approval is required.

While restricting access to illegal file-sharing websites will not magically put an end to all Internet piracy in the United States, making it more difficult for the casual netizen to obtain illegal copyrighted works will likely dissuade all but the most devoted of infringers. With only the most committed copyright scofflaws engaging in online piracy, the entertainment industry should be more comfortable prosecuting said individuals without fear of public backlash. Though the U.S. government has been of limited help in actively tackling the issue of online piracy, the recent decision for the government to not interfere with ISPs may give the entertainment industry its best chance yet to address the crisis.

 

[1] See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001); Metro-Goldwyn-Mayer Studios Inc. et. al., v. Grokster, Ltd. et al., 125 S. Ct. 2764; 162 L.Ed. 2d 781 (2005); Arista Records LLC v. Lime Group LLC, 784 F. Supp. 2d 398 (2011).

[2] See Dan Rys, Music Piracy Grew 14.7 Percent in 2017, But Positive Signs Exist, Billboard (March 21, 2018).

[3] See Todd Spangler, Global Piracy in 2017: TV and Illegal Activity Rose, While Film Declined, Variety, March 21, 2018.

[4] Brian Fung, The FCC just voted to repeal its net neutrality rules, in a sweeping act of deregulation, The Washington Post (Dec. 14, 2017).

[5] See Wikipedia, Net neutrality, https://en.wikipedia.org/wiki/Net_neutrality (describing the history of net neutrality in the U.S. and around the world).

[6] Sam Gustin, FCC Passes Compromise Net Neutrality Rules, Wired (Dec. 21, 2010).

[7] Seth Fiegerman, Net Neutrality Rules Will Officially End On April 32, CNN Money (Feb. 22, 2018),  http://money.cnn.com/2018/02/22/technology/fcc-net-neutrality-date/index.html.

[8] Klint Finley, Here’s How the End of Net Neutrality Will Change the Internet, Wired (Nov. 22, 2017).

[9] FairPlay Canada, https://www.fairplaycanada.com.

[10] Jordan Pearson, Canada’s Telecoms and National Media Want the Government to Block Internet Piracy Websites, Motherboard (Jan. 30, 2018).

[11] Stop Online Piracy Act, H.R.3261; House Judiciary Committee (Oct. 26, 2011).

Image Source: http://www.680news.com/2018/01/29/fairplay-crtc-online-theft/.