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US net sector criticises inclusion of internet intermediaries in piracy report

By | Published on Thursday 17 October 2019

Piracy / Hacker

An organisation called the Internet Infrastructure Coalition – or the i2Coalition – has asked the US Trade Representative to clarify what it means by a “notorious piracy market”. The trade group argues that the USTR’s annual report on intellectual property matters is too vague on this point and, as a result, risks endangering the internet by allowing copyright owners to include legitimate digital businesses alongside obvious rogue operators.

The USTR’s notorious markets report is compiled annually with the aim of informing the American government on piracy issues for whenever it’s in discussions with foreign governments on IP matters. America’s copyright industries, including the music business, each make submissions outlining their main piracy concerns of the moment and listing the websites and companies that they believe are negatively impacting on their IP rights.

While those lists are usually dominated by platforms like The Pirate Bay and all the popular stream-ripping sites, the copyright owners will often also gripe about otherwise legitimate internet companies who sometimes provide services to piracy outfits. One such company that has been on the receiving end of plenty of griping from the record labels in recent years is Cloudflare, which the music industry argues helps piracy sites mask their location.

However, the notorious markets report isn’t the right place for that kind of griping, reckons the i2Coalition, which counts Cloudflare as a member.

In a document outlining its concerns, published by Torrentfreak, the i2Coalition states: “Internet infrastructure providers are not publishers, content creators, nor users of generated content. These companies are intermediaries or ‘interactive computer services’ within the meaning of US law. As interactive computer services, these companies process millions of transactions a day, all at the direction of their users”.

“They are not”, it adds, “in any sense ‘markets’ or ‘marketplaces’. Notorious markets should not be confused with neutral intermediaries such as internet infrastructure providers”.

The USTR should be clearer on what is meant by notorious markets – the i2Coalition then goes on – so that any focus on increasing IP protections in law is on full-on piracy sites, rather than the infrastructure providers those piracy sites may seek to utilise.

It says: “We believe that many of the current submissions [to the notorious markets report] vilify specific technologies, not the marketplaces themselves. We believe that the spirit and letter of the relevant IP laws are better upheld by going after true notorious markets, not throwing the baby out with the bathwater by going after internet infrastructure providers”.

“As the voice of the those providing foundational internet technologies”, it concludes, “we have stood up for the internet infrastructure industry on this issue through written submissions and advocacy before the USTR”.

With the Recording Industry Association Of America’s latest notorious markets submission including Cloudflare once again, it will be interesting to see if the i2Coalition’s intervention results in companies of that kind being excluding from the USTR’s final document.

Though, even if it does, if the copyright industries manage to get safe harbour reform onto the political agenda in the US – seeking to mirror reforms in Europe – expect plenty more debate about the responsibilities, or not, of those platforms passively involved in the distribution of unlicensed content.