December 3, 2013 | By Parker Higgins

2013 in Review: "Voluntary" Copyright Agreements

Year in ReviewAs the year draws to a close, EFF is looking back at the major trends influencing digital rights in 2013 and discussing where we are in the fight for free expression, innovation, fair use, and privacy. Click here to read other blog posts in this series.

After many months of delays, the copyright surveillance machine known commonly as "six strikes," or more formally as the Copyright Alert System, quietly rolled out this year. EFF has warned of issues with the program for years now, since major rightsholder groups and five large U.S. ISPs announced their "Memorandum of Understanding" in July 2011.

There have already been some disappointing examples of industry propaganda posing as "educational resources," but we've yet to see some of our worst fears materialize—in part because we've yet to see much of anything from the Copyright Alert System. That's not cause for much celebration, though; if anything, the fact that private agreements governing everyday user access to the Internet are subject to even more selective enforcement than an actual legal system is reason to be worried.

Despite that drawback, there's been a growing trend in 2013 from rightsholders to embrace "voluntary agreements" as extralegal enforcement systems that can be crafted without feedback from the affected public.

Why would the content industry be embracing a process that resists public transparency and accountability? Perhaps it's a response to the online protests that led to the overwhelming legislative defeat of the Internet blacklist bills SOPA and PIPA. Policy changes that can't withstand public scrutiny have been driven underground, and that means private agreements. Indeed, some of the plans described the Memorandum of Understanding that set up the Copyright Alert System mirror provisions of the defeated SOPA, but the fact that they were submitted to public opinion and came up very short hasn't led the participants to do the right thing and press the reset button on the agreement.

Beyond new rules for ISPs, 2013 has seen the development of ad network "best practices" and a push from the movie industry to ramp up filtering by search engines beyond what is laid out in the Digital Millennium Copyright Act. There was even a Congressional hearing promoting these sorts of agreements in September, featuring testimony from the director overseeing the Copyright Alert System, and the CEO of the Recording Industry Association of America (RIAA). This follows a change by Google late last year to reorder search results based on accusations of infringement.

These factors together suggest that groups like the RIAA and the MPAA will never be satisfied—not so long as intermediaries are willing to trade the public's access to an open Internet and powerful search tools for a possible reduction in the film industry's costs. U.S. copyright law has many, many problems, but at least these problems can be addressed by elected lawmakers—representatives of the public—that have some commitment to the public interest. Unfortunately, the same can't be said of these private agreements.

This article is part of our 2013 Year in Review series; read other articles about the fight for digital rights in 2013.

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