January18,2012

An UnRomantic Take On Why I Oppose SOPA and PIPA

Today is protest day to hopefully stop Congress from passing (and the President subsequently signing) SOPA and PIPA into law. These two bills, at their core, deal with protecting piracy and intellectual property. Those two things are very important to content creators like bloggers, musicians, movie studios and the like. That’s why Hollywood and MPAA and high end luxury brands support the legislation.

You can read a great breakdown of the legislation here and here. You can also get a good synopsis, using sports as an example, of the potential impact here.

But I think that what’s really helpful for people to understand is the way such legislation can play out in real life.

The first thing the legislation, as written would do, is put sites like you tube and wikipedia in a position to be the government’s assistant in enforcing the law. As we saw wire tapping and phone records searches a few years ago, the government can get very heavy handed with companies when it wants to. This usually results in corporations engaging in outright battles with the government or, more likely, giving the government more information than it probably should and using heavy handed tactics to avoid the government’s gaze. It also can result in a great bit of secrecy in terms of how user content is maintained and shared with the Agencies who regulate the collector.[Remember, SOPA/PIPA are geared toward foreign sites just as the wire tapping laws were geared toward international conversations yet the effect was much more broad]

In the case of SOPA and PIPA, depending on the complete text of the bills and any subsequent regulation, the onus on a company like google to prevent piracy could be consequential enough so as to not only prevent a wide range of certain uploads be banned from the site but also providing IP addresses and other user information to the government under even the slightest suspicion that something uploaded is not owned by the user.  This includes linking to such content. In one fell swoop, the ability of independent musicians, writers, filmmakers and the like to engage even in “fair use” of copyrighted materials would take a severe hit.

More than a hit, as happens when many big bills are passed, the first sites and people to get caught end up being punished with a heavy hand. A great example of this: the initial lawsuits the recording industry filed against downloaders. In the beginning, young people with little to no income were hit with HUGE legal fees and fines changing the trajectory of their lives in many cases. Now? Hardly anyone is punished for illegally downloading at all. The threat is still there, but years later the strategy of prosecuting folks in this way is accepted as impractical and pointless across the board. The industry has essentially dropped the effort.

At the time, many analysts stated that it was impractical and that the industry should spend more time improving its business model and less time attacking the consumers it desires. But the recording industry didn’t listen, and they’re not listening now.  You can imagine that the first wave of people affected by SOPA/PIPA could very well have their lives or businesses destroyed only to see the same activity they were prosecuted for grow further into something that the government and affected industry simply cannot control.

Speaking of control, in a time when the government is downsizing across the board, I question the Federal resources needed to execute SOPA/PIPA in the way that it is intended. The United States Congress may pass laws, but they do not enforce them, nor do they write the regulations that provide specific interpretations of the law’s implications–nor do they always properly fund them. Not only would a cash strapped Federal government have to write regulations to flesh out SOPA/PIPA, it’d be responsible for its enforcement.

Without giving a specific example, there are many cases in which Agencies use a method called “targeting resources” to enforce policies that are on the books for programs/laws that are under funded. Using this model, Agencies examine the activities of those who are a HIGH RISK and pay very little attention to other possible offenders. It’s a tacit admission that the Agency doesn’t have enough resources to enforce the law in a balanced manner. There’s no reason to believe that with the infinite size of the world wide web that SOPA/PIPA wouldn’t become yet another example of resource-based enforcement tactics. Not to mention the political incentive to “make examples” our of certain cases.

A few months ago, a couple hip hop sites were shut down for a period of time due to suspected copyright infringement by the Department of Homeland Security. As any blogger knows, record labels often send  songs to sites as a promotional tactic. The music sites then entice readers by labeling the music as “exclusive” or “leaked” –something that benefits both the label and the blog site. Label gets to test the feedback for the song and the blog gets to look like it got its hands on something no one else could.  In this instance, Universal records seemed to want to have it both ways: don’t post the music I don’t send you. Even though, over time, what was sent can be difficult to track due to simple issues like employee turnover and recordkeeping.

Both sites were later restored. Not many people are talking, but you can presume the sites were found either not prosecutable or not worth prosecuting. If you apply the same sort of thing to SOPA/PIPA, you can be going about your business one day and have your site snatched down only to later find you did nothing at all or what you did do wasn’t adequate to warrant the resources it would take to punish you further. in other words, you chance having a business ruined for nothing. In the case of the two music sites, they were restored rather quickly. However, there’s no reason to believe sites or businesses, and by proxy lives, couldn’t be held in limbo for years at a time.

As many have stated, additional action needs to be taken to protect creators from piracy. However, that legislation should be practical, balanced, and reflect an understanding of today’s web and the future of the web. SOPA/PIPA seem to be examples of what happens when Congress is largely disconnected from the internet and obtains the bulk of its information and advice from a very closed set of powerful groups on a subject they know little about individually or collectively.

 

 

 

 

 

 

 

 

 

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