When it comes to fighting online copyright infringement and counterfeiting, things may have been quiet on the legislative front since SOPA and PIPA went down in flames, but the trend towards voluntary enforcement frameworks continues. Yesterday, a group of major online advertising networks agreed  to implement a complaint process  modeled loosely on the DMCA’s “notice-and-takedown” regime. (Notice-and-takedown enables copyright holders to send “take down” notices to websites hosting content the rights holders believe is infringing.) The idea of the new framework is to help dry up the flow of ad revenue to online infringement hubs. These advertising network “best practices” now join the ISPs’ Copyright Alert System , the agreement by major payment systems  to cut off bad actors, and the best practices statement  by national advertisers and advertising agencies, as examples of voluntary, industry-wide plans to take steps against infringement.
Voluntary initiatives like these hold real promise for achieving progress against online infringement, without imposing inflexible or burdensome mandates. On the other hand, when they have the potential to impose significant sanctions on individual speakers or websites – like cutting off a website operator’s revenue – such initiatives put private parties in a quasi-judicial role. At a minimum, this calls for a great deal of care to ensure fair process, effective safeguards and faithful implementation. CDT discussed the advantages and risks of voluntary initiatives at some length in our August 2012 comments  on the Administration’s copyright enforcement strategy.
One important positive sign about the new ad network initiative is that it targets “websites that are principally dedicated to selling counterfeit goods or engaging in copyright piracy and have no substantial non-infringing uses.” In other words, the intended focus appears to be true bad actors, not websites that host a wide variety of user-generated content and hence may sometimes include infringing material posted by users. When private parties are effectively making enforcement decisions, it is crucial to limit the focus to clear-cut cases, rather than wrestling with close calls or legal grey areas. The ad network framework seems to do that.
In addition, the ad network framework provides guidance to rights holders concerning what information to include in notices identifying infringing websites. Importantly, the guidance requires rights holders to cite specific URLs where the alleged infringement occurs. That’s key. It ensures that complaints are specific, facilitates further investigation by the ad networks, and avoids the kind of loose, open-ended takedown demands (“please take down all locations hosting infringing copies of my song or movie”) that in reality amount to demands for comprehensive, ongoing content monitoring and filtering, instead of a specific complaint system.
How well the new framework works in practice, however, will depend on specific implementation details at the individual ad networks. The framework envisions that each ad network will come up with its own internal procedures. Will those procedures be sufficient to minimize any risk of mistakes or abuse? Will there be adequate safeguards to provide recourse in the event that some mistakes do get made? The framework itself says that, upon receipt of a notice complaining about a particular site, an ad network should “perform an appropriate investigation into the complaint.” It also says that ad networks “may consider any credible evidence provided by the accused website,” including through a counter-notice procedure. But what kind of up-front investigation to conduct, and what kind of after-the-fact counter-notice or appeal process to allow, is up to each individual ad network.
A final question concerns transparency. Will the ad network practices be transparent enough to enable some scrutiny of how they are operating in practice, whether they are having a positive impact, and whether they are causing any problems for innocent websites? Yesterday’s post  by Intellectual Property Enforcement Coordinator Victoria Espinel encourages participating ad networks to work with all interested stakeholders “to ensure that their practices are transparent.” This kind of voluntary, “follow the money” initiative  may offer a targeted approach for combating true bad actors, in a way that may work better than legislation, but without sufficient transparency, it would be difficult ever to be sure.