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Eric K. Clemons


Reconsidering the Stop Online Piracy Act

Posted: 02/21/2012 4:47 pm

Piracy is a complicated issue. Companies that sell music, movies, software, or other content believe that the theft of intellectual property can destroy their business. Search companies, companies whose business models are based on posting other people's property surrounded by ads, or search companies whose business models are based in part on posting other people's property surrounded by ads, believe that restricting their access to other people's content will destroy their business. Companies that want to continue using other people's content have brilliantly labeled the restriction of their current practices as censorship. Individuals who want to continue having access without payment, and Silicon Valley investors who want to continue to develop similar business models without restriction, have taken up the call to resist censorship.

As the time approached to consider the Stop Online Piracy Act, also known as H.R. 3261, carefully orchestrated online protests erupted. Google was shrouded in black. Wikipedia was offline in the US. Congress, emulating "brave, brave, brave, brave Sir Robin", "bravely ran away away" and left consideration of the bill for a safer time1.

Eventually, Congress will have to consider SOPA. Below we suggest several questions that Congress will need to address and very short suggestions of what we expect they will conclude. More detailed explanations are provided in subsequent sections.

  1. Is online piracy really theft?

Absolutely. As the laws regarding intellectual property are current written, most forms of online piracy are theft; examples include as downloading works of music, entire movies, or software that has been cracked so that it can be used without a key or proof of ownership. Other uses of copyrighted content, like the use of lead paragraphs from newspaper or magazine stories, may be protected as "fair use" even "too much fair use" may they harm the owners of the intellectual property. Still other uses, such as short quotations or use for purposes of parody, are legally protected in the US. But most piracy is theft, and most piracy is illegal.

  1. Does this theft really harm the owners of intellectual property?

This is more complex. Record companies and movie studios claim to be losing tens of billions of dollars each year to piracy and claim that piracy significantly hurts employment in the entertainment industry. Other analyses claim that piracy by fans creates even stronger interest in the works of the artists whose material is being taken, and over time leads to even greater demand and even greater sales.

  1. Even if harm can be shown, does this harm really matter if the theft benefits consumers and the general public more than it harms the owners of intellectual property?

This is even more complicated. Copyright and patent law were never intended solely for the protection of artists, writers, and inventors. Protection of IP in the US is actually incorporated in the Constitution, and was included before the Bill of Rights. The earliest debates about IP Protection explicitly acknowledged that the public benefits from the works of creative artists and inventors, and that creative artists and inventors will create more if they are allowed sole access to the commercial benefits of their works for a limited period of time. Protection was provided so that creative individuals would have incentives to create, thus benefiting society. Protection was limited so that after a fair return had been earned by creative individuals, society would benefit even more from the unrestricted access to these old creative works, including their incorporation into newer works.

If the benefits that society now gains from piracy outweigh the loss to the owners of IP, then the framers of the Constitution would argue that the harm from piracy should be discounted or even ignored. If the unauthorized creative reuse of older creative works in mashups is included in the definition of piracy, then society's benefits from piracy are especially likely to outweigh the harm. Given the ease with which we can take words and lyrics of an old jazz standard, combine the waveform of a great musician with our own Cyberhorn recording, and produce an almost original work of art, more people can be creative than has been true at any time in human history. Clearly IP protection needs to be relaxed in order to maximize benefits to society.

  1. Does that mean that protection for intellectual property rights need to be eliminated?

Of course not! Without great composers, great writers, and great performers, there would be no music, lyrics, or waveforms to use as the basis of mashups. Software and technology vendors likewise need to be protected, to provide them with the incentives to create the works, like Photoshop or the iPad, that we all cherish, even if we would prefer to pay less for their products.

  1. Does that mean that protections for intellectual property rights should remain as they are now?

Of course not! Although protections need to be relaxed, they certainly should not be left unchanged. With creative use now easier, and with the value of creative reuse increased as a result, more creative reuse of protected material should be permitted, and creative reuse should be permitted sooner.

  1. Is the bill truly necessary? Isn't all necessary protection available elsewhere, such as the Digital Millennium Copyright Act?

The DMCA is perhaps sufficient to define what is and is not legal use of protected IP, but it self-evidently is not sufficient to stop it. Some additional mechanisms are required, not merely to criminalize illegal online activity, but to inhibit it. SOPA attempts to do that by providing mechanisms to prevent rogue websites from getting paid, or even from being found. The framers of SOPA hoped that these websites would not only vanish from search; their intent was for these websites to vanish from the web itself.

  1. So the bill is ok?

Well, no. The bill is vague. It's hard to figure out exactly how a website charged with IP violation can know, in advance, if the material was fair use or not, or if it was parody or not. It's hard to know how they could protect themselves from inaccurate claims of misuse of protected material. This could put legitimate websites at risk of harsh punishment, including "digital banishment" because of the behavior of a small number of users. It's hard to figure out what the punishments are. They do seem severe, including causing websites that are accused of IP violations to simply vanish not only from search, but from the web itself.

Thus, the permitted punishment may be extreme. As importantly, it may not be clear exactly what punishment can be applied, or when, allowing the punishment to be applied too broadly and applied incorrectly to innocent websites incorrectly accused. Surely some interpretations of the bill may allow punishments that a reasonable man would consider extreme. Most American states allow the use of lethal force when you encounter a strange man in your child's bedroom; most would consider the use of lethal force unreasonable to prevent the theft of your child's tricycle from the street in front of your house (unless of course your child was still on the tricycle at the time). Shutting down a website whose sole purpose is to provide first-run movies and stolen software should be encouraged, and blocking payment to them should be required. In contrast, shutting down websites with more fair use than a copyright holder would like to see, and doing so without the website having an opportunity to protect itself, should not be part of any legislation. Laws need to be clear, the punishments need to be clear, and our object all sublime [should be] to let the punishment fit the crime2.

  1. So the protestors are right and the bill is a form of censorship intended to thwart innovation and stifle free speech?

Again, no. Stopping theft is not censorship. Stealing a car is grand theft auto, and stopping someone from stealing a car is stopping theft, not censorship. When a government pulls a video that it considers offensive, or shuts down a website that it considers disloyal or dangerous to the continuation of the government's own unchallenged control, that's censorship. In the United States you can say almost anything, no matter how offensive, or no matter how banal, as long as you say it in your own words.

  1. So ... briefly ... is piracy good or bad for online creativity?

Piracy is probably harmful to creativity. Almost every technological breakthrough in the past has led to some form of artistic breakthrough. We can start as far back as we wish ... with the introduction of percussion and woodwind instruments 50,000 years ago. Or the use of oil paints and perspective to produce the realistic triumphs of Michaelangelo and the Dutch Masters. Or the camera, its creation of realistic images, and the artistic world's adoption of impressionism, cubism, and surrealism in self-defense. Or the moving picture, and its introduction of complex stunts and special effects not possible in live theater.

What truly creative or transformational products and services have we gotten from the net? World of Warcraft is perhaps the only new art form. Facebook is a truly transformative form of entertainment. Both rely upon the unleashed creativity of individual users, and neither relies heavily on the theft of intellectual property.

If businesses based on piracy were more clearly infeasible, perhaps the creative efforts of Silicon Valley would be even more impressive. Perhaps the greatest mechanism for human communications since the invention of the printing press would be used for something more interesting than the traditional selling of traditional products.

1 A short quotation from copyrighted material may legally be used under the Fair Use Doctrine. Use for purposes of satire or parody is also legally protected, and ridicule of Congress such as this is certainly protected as well.

2OK. This use is less clear. Is it fair use? Am I parodying anything, like our current legislative system? Or do I just like the video?