A Disease Less Onerous than the Cure

Toward the end of 2011, I wrote a post about “the new choke points“. It grew out of an opinion piece by Dan Gillmor that had been published by the Nieman Journalism Lab.

In his post, Gillmor saw 2012 as “the year of the content-controller oligopoly“. He named several potential choke points, including search engines, wire-line ISPs, mobile carriers and Apple.

The idea that distribution entities could be used to throttle the dissemination of content is not new, but digital technologies make widespread throttling possible and effective. SOPA may be on hold, but efforts to control the choke points persist.

At CNET, Greg Sandoval reports on efforts by the film and music industries to create the “Center for Copyright Information”, which is expected to “assist in the effort to combat online infringement”. As Sandoval notes:

“Administrators will help evaluate the effectiveness of mitigation measures, the ability of entertainment companies to accurately identify violators and pitching the graduated response program to non-participating ISPs. Antipiracy experts at the studios and music labels say that the graduated-response program is vital to protecting movies and music. They believe that since ISPs are the gatekeepers of the Internet, they are in best position to thwart illegal file sharing.”

For those who aren’t familiar with “graduated response“, Sandoval adds:

“A graduated-response program is supposed to begin with the ISPs sending a series of letters to customers who are flagged for allegedly downloading pirated songs or films. The letters will endeavor to educate the accused that downloading unauthorized content is illegal. The ISPs will then gradually begin ratcheting up the pressure for those who are alleged to have committed multiple piracy infractions.”

The emphasis on “allegedly” is mine.

Who gets to decide whether posted content represents an infringing use? Well, apparently it starts with the Center for Copyright Information. Rather than go to a court to complain about infringement, content owners can sidestep the law (which is pesky) and just lean on ISPs to shut off anyone whose activities are found objectionable.

I’ve written many times that I respect copyright. More broadly, I respect the law. Prior restraint, dimunition of fair use and employing penalties whose cost may outweigh the benefits are all tactics that Dan Gillmor predicted in his post. They make me think the disease may be less onerous than the cure.

About Brian O'Leary

Founder and principal of Magellan Media Consulting, Brian O’Leary helps enterprises with media and publishing components capitalize on the power of content. A veteran of more than 30 years in the publishing industry and a prolific content producer himself, Brian leverages the breadth and depth of his experience to deliver innovative content solutions.