SOPA is Dead, but the Copyright Debate Rages On

And it's happening where it belongs: online.

Lobbying surely played a role, but the bills were shelved when massive numbers of people on the Internet decided they were a bad idea. Following the blackouts, public opposition reached a peak, with congressional representatives deluged with citizen complaints, Internet users flocking to comments sections to register their disgust, open letters signed by tech execs and public-interest advocates published in major newspapers, and a statement from President Obama opposing SOPA.

"When Reddit, and especially Wikipedia, went black, that was a huge statement," Ohanian says. After that media could no longer ignore the bills.

The underlying reason for the outrage was that SOPA, in particular, represented everything that's wrong with the copyright industry's approach to combating piracy. It was aggressively clueless about how the Internet works. It would have transferred responsibility for illegal downloading to people and companies, such as Google, that have nothing to do with pirated materials. Under one interpretation, it could have made a private citizen who simply linked to a site that offered unauthorized material liable, even if the link itself wasn't to anything illicit. Sites like Etsy, YouTube and Flickr would have been made legally responsible for everything posted by their users, which could have rendered the operation of such sites impossible.

Cartoonist Matthew Inman examined these issues at
Courtesy of
Cartoonist Matthew Inman examined these issues at
Reddit's Alexis Ohanian believes the best ideas prevail on the Internet.
C.S. Muncy
Reddit's Alexis Ohanian believes the best ideas prevail on the Internet.

Further, SOPA would have allowed judges to issue orders, absent any due process, to block a site from linking to another site where unauthorized material might be housed. And networking experts said that provisions for blocking access to domains could have wreaked technical havoc.

There were many more problems with the bill — nearly all of them stemming from how terribly it was written. It was so vague that nobody on either side had a clear idea of who would be held liable for what actions.

Each side had business interests at stake, but the copyright industry, as usual, was far more wrong than its opponents. After all, this is an industry that spent years believing that suing its own customers was the best way to combat piracy. That strategy sent more than a few people into poverty for downloading a few songs, and the music business (or at least the record-label business) imploded anyway. This attitude is endemic to the media industry. Jack Valenti, president of the MPAA, told a congressional panel in 1982 that "the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone." Nothing has changed. During the SOPA debate, Chamber of Commerce Vice President Mark Elliot made the insane claim — during a congressional hearing, no less — that foreign pirate sites "threaten more than 19 million American jobs," a figure that is basically made up. The media business has always been paranoid about new technologies, and it probably always will be.

But if the aim is to reach a reasonable compromise, the copyright industry's opponents aren't helping much. How much piracy has hurt, say, the music business is open to question — one that is complicated by the industry's own woeful mismanagement. But although the media industry has done a breathtakingly bad job of making its case, that doesn't mean it has no case to make. Piracy is not an existential threat to the movie and television businesses, and the evidence suggests that the industry has suffered far less than it claims it has — but probably more than its critics assert.

So, what to do about piracy? One alternative to SOPA and PIPA is the Online Protection and Enforcement of Digital Trade Act, or OPEN. Introduced by Oregon Democratic Senator Ron Wyden and California Republican Representative Darrell Issa just before the web blackouts, OPEN would put enforcement of foreign-based piracy in the hands of the International Trade Commission. It is, after all, a matter of foreign trade, and the ITC already enforces foreign patent violations. Rather than censor content, impose dangerous technological enforcement methods or target American businesses linking to sites that offer pirated material, OPEN would target the actual sites by giving the ITC the power to cut off electronic payments to them.

Many critics say it would be toothless. The pro-SOPA forces hate it for that reason. Levine calls it "the not-SOPA Act" and says it was drafted merely to prevent SOPA from passing, which might be true. But it seems like a reasonable approach to attack at the margins of what is, for the most part, a marginal problem.

Another option is to refrain from passing any new legislation at all. There are laws and enforcement mechanisms in place to fight piracy, as shown by the Justice Department's shutdown of the Hong Kong-based Megaupload earlier this year, when several of its executives were arrested in New Zealand at the FBI's request. Such actions would go over better without some of the more extreme tactics that were employed — such as the government's refusal to return legitimate data to customers who had stored it on Megaupload's servers. But the raid showed that the worst players can, at least sometimes, be taken out of the game.

But no matter what approach the government takes, the copyright industry will have to accept some level of piracy as just another cost of business.

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Pete Sawyer
Pete Sawyer

SOPA will be replaced with something just as bad

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