Deterring Online Piracy of Content

BSA Position on Appropriate Measures to
Deter Online Piracy of Content

Online piracy presents a serious and immediate threat to software developers as well as to other copyright-based industries. Too many persons now treat illicit acquisition of copyrighted works online as a routine matter, ignoring the fact that they are engaging in illegal acts. But it is important not to lose track of the fact that the vast majority of individuals and businesses use software, computers, and the Internet for a myriad of legal and legitimate personal and business reasons.

The current voluntary industry-led approach to developing technologies to address online content piracy continues to be effective and mandated use of any such technologies is not justified. Measures taken should be tailored to the content piracy issue identified and Government’s role should be to ensure that legal offerings for digital content services are facilitated.

BSA members approach proposed solutions to address online content piracy with two objectives:

1. To effectively deter illicit downloading, uploading, making available and use of content, and,
   
   
2. To ensure existing technologies function as designed, that innovation and the development of new technologies and services are not obstructed, and that users’ enjoyment of software, computers and the Internet is not diminished.

BSA members believe due care must be taken to ensure policies meet both considerations. We believe the following principles provide the basis for achieving this balance.

1. Some anti-piracy content identification and filtering technologies may play a useful role in deterring piracy in some limited cases, but they are not a “silver bullet” solution to piracy. Rather, addressing piracy effectively requires ongoing voluntary inter-industry efforts.
   
   
2. In appropriate circumstances, BSA supports:
   
   a) Automated educational notification mechanisms for alleged online infringers and a requirement for ISPs to preserve evidence of repeated infringements such as a user’s IP address to enable anti-piracy court proceedings and administrative anti-piracy procedures or appropriate enforcement actions, subject to appropriate safeguards, including those governing privacy;
   
   b) The imposition of appropriate sanctions, including blocking a user, blocking a site, and the suspension or termination of Internet service for individual repeat offenders, provided:
   
   Such sanctions against individual repeat offenders shall be based on either:
   
   i) Breach of contract, i.e., the terms of subscriber’s contract with the service provider. (Contractual mechanisms are a helpful and efficient way of dealing with online piracy and should be encouraged and widely implemented.) or
   
   ii) Through a decision by an administrative or judicial entity, provided such entity gives all parties an opportunity to be heard and to present evidence, and that the decision can be appealed before an impartial court. Before an order becomes final, parties shall have the opportunity to have the order stayed pending appeal to courts.
   
   
3. When developing steps to address online content piracy, the following shall also be given due consideration:
   
   a) The voluntary development and use of anti-piracy content identification and filtering technologies should continue unimpeded: this self-regulatory approach is the effective way to address piracy. The specific technologies themselves should be developed through voluntary processes open to all affected stakeholders, and the results should be based on consensus of the participants.
   
   b) In specific cases where anti-piracy content identification and filtering technology is used, it should be demonstrated to be robust, renewable, interoperable, free of unintended consequences for existing systems, and any other relevant criteria necessary to ensure users' experience will not be degraded and the development and deployment of new technologies will not be impeded.
   
   c) Where it is determined that it is necessary to empower national judicial or administrative entities to require the use of anti-piracy content identification and filtering technologies, such entities shall impose the requirement as a remedy on a case-by-case basis, in view of the specific facts presented, and after all affected stakeholders have had an opportunity to assess the impact of the specific anti-piracy content identification or filter’s use on their technologies, and identified issues have been comprehensively addressed.
   
   
4. BSA opposes:
   
   a) The termination of ISP services or any other sanctions or penalties imposed on alleged infringers without due process and, at a minimum, a right of appeal to a judicial authority, except when such penalties are imposed as a result of a breach of contract with the service provider.
   
   b) Imposition of broad anti-piracy content identification and filtering technological requirements applicable to all Internet users, or all computers and software used to access the Internet, by legislation, administrative fiat or adjudication.