Thoughts on SOPA

by Eric Schwartz
from the AmiTech Gazette, February 2012

First off, I’d like to wish a happy Greeting Card Companies Day to all those who had reason to celebrate. Now with that out of the way, I’d like to expound a little about the recent “Internet IP protection” bills SOPA and PIPA. The measures to curb on-line piracy endorsed by these bills were considered too draconian by pretty much everyone who understood how the world with an Internet in it works, and did not directly benefit from their passing. Many high and low-profile web sites protested in favor of the defeat of the bill either by urging people to write their representative or going “on strike” for a day or so, and the congressional debate became toxic enough that the bills were shelved “indefinitely,” which is slang for the backers (such as the motion picture association) waiting until no one’s watching to try again. While some declare their victory over the forces of evil and censorship, ACTA, the international treaty counterpart, is making its own bid. ACTA is not quite as big a deal in the US as SOPA or PIPA, as it supposedly mostly enacts regulations we already have as part of the Digital Millennium Copyright Agreement (DMCA) internationally, but it’s still forcing change and potentially curtailing rights, and being hand-led in such a back-door way that we may not be know exactly how much it does until it’s actually in place. The Internet is prone to hyperbole, but then so are the media conglomerates that back these bills, so the situation is never black or white, and there may be no such thing as a “right” answer.

As I frequently work as a “content provider” and manage my own websites, I know that on-line piracy can sting, and I fully believe that creators should be adequately compensated for the work they do. On one end of the debate you have the philosophical pirates, those that say that all information, entertainment, and the like should be free to all, and trying to monetize it or claim property rights is inherently wrong and stifling to the spirit of the Internet. More often you’ll see the practical pirates, who basically just don’t wanna hafta pay for stuff. Sometimes they’re honest about the situation, sometimes they justify or rationalize their actions with arguments that come off as idiotic when digital data is replaced with tangible objects (“I wasn't going to buy it anyway, so it's OK.”). To be fair, digital piracy has the distinction of not depriving the previous owner of their property. I’m often surprised by the sense of entitlement seen in some of these people, calling for others to share or pirate a given thing so they can have it (roughly equivalent to asking a stranger to buy them something) or becoming belligerently indignant, screaming about their own rights and freedoms when the IP owners take action to get in their way. They’re no saints, that’s for sure. However, on the other side there’s the big corporate content providers who treat every loss to piracy with far more value than it probably actually deserves. They are the types who created software license agreements and digital rights management schemes that claim that even if you paid for your digital data, (and the physical object that contains it it’s not necessarily “yours” and you can’t just copy or use it however you like. These types are all for giving someone years of jail time for illegally sharing $13 worth of music, and shutting down any and all Internet sites which might contain any amount of their un-paid-for digital property, regardless of how it happened. They don’t exactly sound saintly either. Neither side represents a majority, but just like in politics, those on the extremes battle, while the “regular folk” just trying to get by in the middle are caught in the crossfire and probably end up getting hurt the most.

As I’ve mentioned, I’ve worked in Internet and digital content, and I’ve been affected by piracy, directly and indirectly. As such, there is a temptation to do all possible to prevent piracy, and punish the offenders to the fullest extent. There have even been times when I’ve considered taking preemptive action against potential piracy, which is basically punishing someone on suspicion that they might do something they haven’t done yet, with the goal of keeping it from happening, “Minority Report” style. That might be justifiable if we’re talking about murder or terrorism or something, but this is just unauthorized file-sharing. It’s clear there’s a line here l don’t want to cross, in no small part because I wouldn’t want others crossing it, least of all the entities with the power to pull it off effectively. While I believe piracy and file sharing is a problem, and damages to many creators and producers, the legal steps the “big guns” like the MPAA endorse are at least as damaging. For example, bills like SOPA and PIPA (or at least certain drafts) mention that a given site can be shut down or blocked on a copyright complaint without the due process required currently. Presumably this is presented as a “stop them before they do even more damage while the courts drag their feet” measure, but it could just as easily be a “shut down something we don’t like and tie them up with red tape until they die” to anyone with means to abuse the system. That’s probably not the intent of the bill [Editor’s note: I’m not convinced of that.], but a lot of vigilance would be required to make sure some person, politician, or business doesn't fling an IP infringement complaint at some website that bad-mouthed them, just to shut them up. Speaking of vigilance, these bills are said to make sites and service providers liable for what their users do, kinda like prosecuting the managers of a shopping mall because two shoppers were found conducting a drug deal in the restroom. This is undoubtedly to go after file-sharing sites like the recently-defunct Megaupload [Editor’s note: Megaupload was shut down without the help of new legislation.], or all the copyrighted material on YouTube and elsewhere, and a much stronger measure than the “We deal with whatever is reported to us” used now. I’m not sure how viable it is for any web service to screen all things uploaded by thousands to millions of users for possible copyright infringement (not to mention trademarks, patents, and other IP infringements), but regardless it puts a much greater burden on Internet businesses to keep their houses clean, which is still no guarantee against an occasional slip-up or an abuse of power.

The big problem with all these things is that the Internet is the Internet, and its nature (and the pirates) can never be totally controlled, as much as some lawmakers would like to try. The harder you push against the tide, the harder the tide pushes back through any opening. It seems the best defense against piracy is the paradigm shift. While things such as the Itunes store and the “app economy” don’t stop piracy, it has made finding and buying a given bit of digital music or video or program more convenient (and not that much more costly) than trying to track down the right file for free. It seems likely some partially-watered-down version of these IP-protection bills will eventually pass into law, which hopefully will be not so severe as what we've seen earlier. I wish it could all be dealt with using common sense, and claims handled on a case-by-case basis. Unfortunately, common sense is in terribly short supply in law and politics, and law is more about absolutes than handling each case differently. I suppose the best (if unlikely) option are laws that make sure the pirates and the money-grubbers at the extremes are both equally unhappy, while the regular folk in the middle of the battlefield get the better of the deal.