In yet another step down what could be a slippery slope toward an elaborate extralegal IP enforcement regime, several major Internet advertising networks announced an agreement this week on how they will treat "pirate sites." The good news: the "best practices" could be much much worse. The bad news: once again, Internet users weren't given a seat at the negotiating table.
Ad networks are brokers that connect those who want to advertise online with websites hoping to earn revenue by showing those ads. Though the ad networks are almost invisible to a person browsing the Web, they are a key source of revenue for large parts of the web, such as blogs and news sites. Major media companies and their mouthpieces have been clamoring for ad networks to keep websites that they consider to be "rogue sites" or "pirate sites" from earning ad revenue. The Internet blacklist bills SOPA and PIPA, which were defeated in Congress after massive protests last year, would have created several new methods to choke off that revenue. With the demise of Internet blacklist legislation in Congress, IP owners are turning to private agreements. No law requires ad networks to set up a process like this, but the encouragement of the White House carries an implied threat—create a takedown system "voluntarily" or more SOPA-like laws may follow.
In a nutshell, the ad networks will follow a process similar to the Digital Millennium Copyright Act (DMCA) notice and takedown scheme. The process itself is not unreasonable, at least on paper. Ad networks say they will require real evidence that the website is principally dedicated to infringing activity, with no substantial noninfringing uses, before they take action. Actions taken may include simply requesting the customer cease its allegedly infringing activity. In other words, an automatic chokehold is not required. The complaining copyright or trademark holder also has to show that they reached out to the site itself with a DMCA notice or cease and desist letter before asking the ad network to target the site.
That doesn't mean we shouldn't be wary when private companies who control key Internet infrastructure work together (under heavy pressure from major IP owners and the US government) to set the rules about who gets to play and who doesn't. The DMCA takedown process is already abused to censor legitimate content. Entirely extralegal procedures make it harder to punish that kind of abuse. More generally, as with the Copyright Surveillance System, agreements like these are helping to create a web of private laws, without the checks and balances we expect from a real legal system, much less public input from the Internet users who will be affected by these private rules.
And here's the real kicker: this path can all-too-easily lead to a complex web of "voluntary" regulation. For decades, Congress has been giving content providers ever more draconian enforcement tools—but they have never been satisfied. That won't change just because the tools are "voluntary measures." Indeed, the Motion Picture Association of America is already complaining that the ad network best practices don't do nearly enough. You cannot appease these organizations.
EFF will be watching to see who has your back when it comes to "voluntary" IP enforcement, and who does not.
