Tuesday, September 23, 2008

Are We Going to Get International Internet Copyright Regulation?

The Bush administration is negotiating a possible international internet treaty which would provide copyright holders with increased protections. Not surprisingly, consumer groups and internet companies led by Google are opposed to this potential treaty. The Bush administration is talking with Japan and the European Union regarding the treaty. However, most savvy internet attorneys will tell you that Japan and the EU is not where the majority of nefarious copyright infringement occurs. China, Russia and the former Soviet block countries rule the roost when it comes to copyright infringement.

Google is attempting to insert an exclusion from the treaty for the sale of copyrighted movies and music on the internet. Obviously, as Google becomes a larger and larger distributor of content through Youtube and other properties, the more opportunities for infringement arise. Youtube is already up to its neck in internet based copyright infringement lawsuits. The last thing Google wants to deal with is even stricter copyright infringement oversight and procedures. Currently, companies like Google are required to set up procedures to deal with DMCA take down notices provided by content owners. Simply processing the volume of these notices must add millions to Google's expense sheet. Think of the potential cost to be shouldered by internet companies in the wake of an international treaty.

The real point to take from this proposed treaty is that internet lawyers and internet law firms now have to take a global view of copyright infringement in a way that simply wasn't imaginable even 10 years ago. The proliferation of broadband, distribution platforms and bit torrent technology has led to an international copyright infringement epidemic. This technology makes infringement easy and, currently, there is no international regulation so, in most countries, there is no downside or risk for infringers. This is rapidly changing however, and not just due to this potential treaty. Courts in both America and Europe have become more responsive to the needs of internet lawyers in obtaining the identity of infringers.

In America, the current weapon for internet litigators is the John Doe lawsuit. Armed with only an ip address and evidence of an infringement, internet lawyers must file a lawsuit against unidentified defendants, and then discern the identity of such defendants by issuing subpoenas. Perhaps this new treaty will provide a mechanism whereby internet law firms no longer need to utilize the cumbersome john doe lawsuit procedure and, instead, may obtain infringer identities outside of the litigation context.

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