Can We Stop Online Piracy Without Censoring The Internet?

In late October of this year, a bipartisan team from the House of Representatives introduced the Stop Online Piracy Act.

This bill, known as SOPA, immediately found champions in business and labor alike. Soon, the US Chamber of Commerce and the AFL-CIO were both lobbying Congress to quickly pass the legislation, promising it would create or preserve thousands of jobs in the creative sector.

Until just this week, SOPA enjoyed broad support and seemed like a shoe in. That is, it seems, until people actually started to read it.

The Tech Industry Lashes Out

In late November, Yahoo quickly and quietly withdrew from the Chamber of Commerce over its support of the bill. Google and others publicly considered doing the same. Soon, web companies including Facebook, Tumblr, Vimeo, and political groups on both ends of the spectrum, from MoveOn.org to the Tea Party came out to oppose the bill.

According to Will Oremus of Slate, “[S]ome tech wonks, such as Jonathan Zittrain of Harvard…say the bill as written is so extreme that it looks more like an opening bid in a negotiation than anything that could plausibly gain passage. But if the anti-SOPA campaign doesn’t keep up the pressure, it just might become the law of the land.”

Thanks to an aggressive new lobbying campaign by the tech industry, the story of SOPA (and its sister bill in the Senate, the IP Protection Act) is being told throughout the country.  But how did it gain both such broad support, and then such wide disdain? We investigated both sides, and offer our analysis.

Why SOPA, and Why Now?

In the past decade, the music industry has seen a 50% loss of revenue, while major newspapers have laid off more than 20% of journalists, in a many cases slashing entire departments (most notably, in arts and science), declaring bankruptcy or folding completely.

While “culture businesses” that deal in arts, information and entertainment, have been among the few profitable industries in historical recessions, this time they’ve among the hardest-hit.

Meanwhile, one of the fastest growing segments of the global economy is the new technology sector. Over the past 10 years, it’s accounted for at least 10% of new growth in GDP. When we narrow that window to look at the last few years, it could represent as much as 50% of new growth.

Many lovers of arts and information, myself included, welcomed the internet age with open arms.  Music, and other mediums, had in had fallen under the stranglehold of a few corrupt, monopolistic enterprises, and consumers who were screaming for greater diversity and accessibility felt largely ignored.

The internet promised to change all that, and in many ways it did. Unfortunately, there were two unforeseen problems.

The first is that with the rise of piracy, organizations devoted to making arts and entertainment profitable shrank. In turn, content creators found themselves with shrinking opportunites to monetize their craft, even as consumption of culture dramatically increased.

Web-2.0-cheerleaders like Chris Anderson have argued that the “Long Tail” of the internet would provide more independent opportunities for professional content creators, not less. But the crushing irony is that one of the few things big companies are actually good at is leveraging the power of the “long tail” into a force for job creation.

The second, and new concern of the internet age is the sense that we’re headed straight toward a case of “meet the new boss, same as the old boss.”

“The middleman hasn’t been eliminated.,” said pro-copyright stalwart Robert Levine in a recent interview with Salon’s Scott Timberg. “There’s a new middleman.”

 “YouTube is the new middleman. YouTube, just now, was giving professional content creators advances against future royalties. Is it a good middleman? I don’t know…But I would say that the idea that YouTube is fundamentally different from a record company is silly. YouTube probably has a higher percentage of the market for online video than all four major labels combined have of recorded music. Who’s stopping their market power? No one.

…[T]hey have their own interest in mind. When Google says newspapers should be free on the Internet, they may really believe that, but you also have to keep in mind that it’s a huge help to them.”

It’s undeniable that musicians, authors, filmmakers, designers, photographers, and journalists today are subject to having their worked shared with impunity.

The US Chamber of Commerce, one of the more visible supporters of SOPA, suggests these losses amount to roughly $135 billion each year. Levine, who just published a positioned and provocative book on the subject, is just as up in arms about the fact that the organizations who facilitate the sharing are making money by doing so; and more to the point, they’re not being questioned or held accountable in the same way as the labels and publishers of yesteryear.

Levine would agree that there were many problems with creative businesses before the internet, but without companies dedicated to generating sustainable revenue for arts and information, he believes we’ll cripple our professional class of creatives. In the long run, he feels that will reduce the quality of the work that’s left to share:

“There’s a great quote by Justice Sandra Day O’Connor that says: ‘The Framers intended copyright itself to be the engine of free expression. By establishing the marketable right to the use of one’s expression, copyright supplies an economic incentive to create and disseminate.’ That’s a pretty powerful argument.’”

So What’s Wrong With SOPA?

The conversation about creative compensation in this country has come a long way in the past few years.

One upon a time, copyright was sacrosanct. In the internet age, it became suspect. But recently, the once-popular justifications in favor rampant file-sharing have worn so thin that Congressional efforts to clamp down on copyright infringing sites almost went unchallenged.

It wasn’t long ago that performers like Metallica’s Lars Ulrich helped sour the cause of copyright protection for an entire generation. While he and others made self-righteous and tone-deaf arguments against file-sharing, the major record labels did a decade’s worth of counterproductive PR for themselves by hammering everyday Americans with multi-million dollar lawsuits.

The common-sense approach of going after offenders by levying reasonable fines, appropriate to the scale of the infractions appeared to be out of the realm of possibility for companies in the notoriously litigious US. In Sweden however, (home of the file-sharing site Pirate Bay), the government began cracking down on file-sharing with reasonable fines in 2009 and experienced great success. This practice caused immediate and significant revenue increases for musicians and other content-creators.

But with SOPA, we Americans seemed to be prepared to repeat our mistakes. That is, until word got out and popular opinion began turning against the bill.

So what could have been so wrong with this well-intentioned legislation to cause Libertarian Ron Paul, Democrat Nancy Pelosi, and Conservative Darrell Issa to join forces in opposing it?

The Opposition

There are three major reasons SOPA has come under such scrutiny:

1) The punishments recommended for ordinary Americans are draconian. Under SOPA, everyday Americans who post copyrighted material, whether it’s a bootleg video, a remix, or an a capella rendition of their favorite song, are subject to up to 5 years’ imprisonment.

2) This bill would bring us closer to providing Government, and businesses, with an “Internet Kill Switch.” At the very least, it steers us toward a potential scenario that media outlets are calling “The Great Firewall Of America.”

3) SOPA tilts the scales too far in the favor of accusers. It allows just 5 days between an infringement claim and the termination of offending websites. During the claim period, accused sites will be unable to collect revenues for their content, leading to ample opportunities for industrial sabotage.

(There is also legitimate concern that domain blocking strategies proposed by the bill could leave users’ connections less secure, but this point is debatable.)

SOPA and its sister legislation, PIPA, may have been drafted under the noblest intentions and toward important ends, but these means clearly go too far. Even Microsoft, which has a vested interest in anti-piracy reform, has reversed its position and opposed the bill after realizing just how dangerous it is in its current form.

According to The Hill, conservative Rep. Issa said the legislation is “beyond repair and must be rewritten from scratch.” The more liberal House Minority Leader Nancy Pelosi agreed, writing on her Twitter feed that “we need to find a better solution than SOPA.”

It’s clear that SOPA oversteps its rightful bounds. However, a rewrite of the bill still has a strong chance of making it through the house. And maybe it should.

What SOPA Got Right

Robert Levine, the staunch copyright-enforcement advocate we quoted earlier in this article, makes the case that copyright protection in the Web 2.0 world is an opt-in rather than opt-out scenario.

What he means is that when copyright holders find their creations on YouTube or any other file-hosting site, it’s ultimately their own responsibility to file a claim to remove the offending content. Effectively, artists and their agents have to police the entire web for misuse of their content.

Google (which owns YouTube), and others in their position, argue that changing this arrangement would be a burden, forcing them to allocate additional resources toward policing the content on their sites.

In a word: “Duh.” That’s the whole point. Who do they suggest police the content on their sites instead? The content creators? Is that somehow more fair?

Google has a valid argument when it comes to protecting their Search-Engine service, which is essentially a directory, like a phone book. The same can be said for their email program, which is a communications service, like a phone line. But the story is different in the case of YouTube.

With YouTube, Google’s role is as a publisher of content. The same goes for Facebook, Vimeo, and Tumblr. They are media outlets like which the world has never seen. They’re also, in a very real sense, publishers.

Just as The New York Times, CBS, or Simon and Schuster would be ultimately responsible for facilitating plagarism and copyright infringement through their services, YouTube and digital publishing services should be ultimately responsible for the materials on their sites as well.

The fact that they publish content submitted by amateurs in addition to professionals does not free them from the responsibilities of a publisher.

It is true that there are many cases in which publishers pass responsibility for plagiarism or copyright infringement on to individual content creators. In these cases however, the content creator have signed a binding indemnity clause with the publisher declaring that they’ve assumed responsibility. YouTube or Facebook might require the same of its users. This of course, would make individual users liable for charges of copyright infringement.

It’s important to remember that even if SOPA is rewritten to get rid of its most indefensible implications, any legislation that forces powerful Web 2.0 publishers like Google and Facebook to increasingly police their sites for pirated content will still be met with resistance. As unpleasant as it is, this kind of legislation would ultimately benefit artists, and in the long run, consumers.

Here at TMimaS, we often post links to sample tracks on YouTube. The format, even when problematic as far as sound-quality is concerned is endlessly convenient for our readers. Clicks on these YouTube links are responsible for ad sales that generate real revenue. But to be honest, we currently have no way of knowing whether the money that traffic generates is going to the content creators, an unaffiliated third party, or to YouTube alone. Anyway you slice it, that’s a shame.

In the end, some type of legislation similar to SOPA will most likely come to pass, with compromises made on both sides.

This entry was posted in All Stories, December 2011, Featured Stories, Industry Trends, Rants and Raves. Bookmark the permalink. Both comments and trackbacks are currently closed.
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