With sites like Wikipedia and Google holding a protest today, many people are likely hearing about proposed copyright legislation — the Stop Online Piracy Act in the House and the Protect IP Act in the Senate — for the first time today. So I figured I’d dispense with my usual writing — footnotes and all — to provide a brief introduction and explanation to the bills.
To call some of what is being said about these bills “hyperbole” would be an understatement. Then again, hyperbole is what the internet does best, second only to cat videos. If you’re looking for a somewhat more rational look at these bills before coming to an informed conclusion, read on.
What is the Problem?
Nearly everyone, even those who oppose the bills, agree that piracy is a problem. “Copyright industries” — everything from newspapers and periodicals, to motion pictures, recorded music, radio and television broadcasting, and computer software — are vital not only to our economy but our society as a whole. Online piracy has led to lost jobs and revenues in these industries.
Online piracy hurts creators. Many outside the creative industries are ambivalent to this. In large part, this is because the issue of online piracy has been framed as one affecting only record labels and movie studios — and rock stars and movie stars don’t evoke much sympathy. While everyone deserves protection of the laws, the ambivalence is understandable.
But the fact is that, while piracy certainly affects larger entities, it is the smaller and independent producers that bear the brunt of piracy’s harm. The James Camerons and Lady Gagas of the world will survive the transition to a digital age. Independent producers and the next generation of creators, however, are hurting.
And this should be a concern, because these creators so often make the most valuable contributions to our culture. They express views that are not always expressed by mainstream producers. They take creative and financial risks. They also, unfortunately, do not have the resources to respond to commercial pirates online.
For example, in a recent Huffington Post piece, Kathy Wolfe, who runs a company that distributes gay and lesbian films, notes how difficult it is to “compete with free.”
The artists I work with and the films I have been privileged to be associated with have changed countless lives. Without a secure, fair and functioning online market, these stories of diversity will cease to be told and this “Freedom of Speech” will be compromised. American companies that are in the business of creating and distributing content shouldn’t be sacrificed to protect large-scale pirate profiteers who knowingly and blatantly flout the law and common sense.
Attorney Dorrissa D. Griffin expressed similar sentiments in an article last October. Said Griffin, “Minority artists are impacted the most by this kind of theft because minority artists, writers and filmmakers often have little wealth (the wealth gap being as vast as it is) – except for their intellectual property. And once that gets stolen, nothing is left.”
In an article last spring, Jason Reitman (Up in the Air, Juno) worries about what the future holds for art and entertainment in general if piracy continues unchecked:
Reitman has a term for the type of motion picture facing extinction because of piracy. He calls them “tweeners”—the movies between the $10,000 YouTube home videos and the large-budget studio productions. Reitman sees the “tweener” as the lifeblood of the creative industry—producing movies as culturally significant and economically successful as Lost in Translation, American Beauty, and Pulp Fiction. It’s these movies, he believes which “push cinema forward,” producing the Sofia Coppolas and Quentin Tarantinos who then go on to make bigger budget and more lucrative movies.
Why is New Legislation Needed?
To understand SOPA and PROTECT IP, you have to first understand the law now. Under current law, anyone who copies, distributes, or publicly performs a work has infringed. A copyright owner can sue an infringer in federal court — which typically requires an attorney and thousands of dollars, with no guarantee of success. This makes sense if the infringer has deep pockets or is profiting off piracy. It makes less sense if the infringement is decentralized and dispersed, as often happens online.
Recognizing this, Congress passed the Digital Millennium Copyright Act in 1998. The DMCA protects sites that accept material uploaded by users — like YouTube and Facebook — from infringement liability if they comply with the law’s requirements. One of those requirements is taking down infringing material like a video or picture if the copyright owner sends a takedown notice to the service provider. Though users who upload material to such sites are still liable for copyright infringement, the notice-and-takedown regime has effectively shielded ordinary users from this liability as well. As the EFF has said:
As far as we know, no typical YouTube user has ever been sued by a major entertainment industry company for uploading a video. We have heard of a couple special cases, involving pre-release content leaked by industry insiders, but those aren’t typical YouTube users. And there have probably been a few lawsuits brought by aggressive individual copyright trolls. But no lawsuits against YouTubers by Hollywood studios or major record labels. That’s right — millions of videos have been posted to YouTube, hundreds of thousands taken down by major media companies, but those companies have not brought lawsuits against YouTube users.
There’s certainly plenty of room for improvement in the DMCA. But most will agree that the balance it struck has generally worked in the past decade, allowing new venues of expression to flourish — sites like YouTube, Facebook, and Wikipedia, for example — while creating some semblance of a functioning market that provides consumers with legal and innovative ways to access movies, music, and other creative works online — whether through Netflix, iTunes, Hulu, or Spotify.
So why is SOPA/PROTECT IP needed? It’s still trivially easy to set up a site that offers illegal content and profit from it from advertising and subscriptions or sales. And when such sites are operated overseas, they are effectively impossible for copyright holders to reach through DMCA takedowns or an ordinary copyright infringement lawsuit, yet such services are available to anyone in the US with an internet connection.
These sites profit off the talents of creative Americans, stall the development of legal services for consumers, and give nothing back.
What Would the Bills Do?
SOPA and PROTECT IP would give the Attorney General and copyright holders more effective remedies designed to cut off the money flowing to these types of sites.
The internet is filled with misinformation about both bills, much of it inadvertant, some of it deliberate (as with any legislation). A lot of this misinformation could be remedied simply by reading the bills (H.R. 3261 and S.968). Not all of it, of course. Legislation can be difficult for even lawyers and Congressmen to understand — and copyright law is an especially difficult subject to grasp.
So a brief word first about what these bills don’t do.
Much of the early criticism over these bills centered around provisions that would allow courts to order service providers to block access to websites. These provisions have since been removed and are not likely to come back. All that talk about “censorship” or “blacklists” or “breaking the internet” (all characterizations I absolutely disagree with) is moot.
These bills do not change what is or isn’t copyright infringement; instead, they limit the availability of these remedies to only a narrow subset of illegal behavior. Under SOPA, for example, the remedies are only available to a copyright holder if a site is “primarily designed” for offering goods or services that infringe copyrighted works, “for purposes of commercial advantage or private financial gain, and with respect to infringement of complete or substantially complete works.” (Emphasis added). A stray infringing clip on a blog or social networking site won’t cut it under this definition.
If a copyright owner wishes to take action against such a site, it must file a lawsuit in court, where the site owner is protected by the same due process safeguards as any civil defendant. The copyright owner may then move for court orders against any advertising or payment provider whose services are being used by the site to profit off piracy. If the court approves these orders, the providers must discontinue their services to that site.
It should be noted that both bills expressly limit the remedies available to copyright owners to these court orders — copyright owners can’t collect any monetary damages from sites under these bills.
In addition, advertising and payment providers are only required to take “technically feasible and reasonable measures” if served with a court order. Even then, they are only liable for court assessed penalties if they “knowingly and willingly” refuse to comply.
Finally, these remedies are not permanent. At any time after an order has been entered, a site owner can move to modify or vacate the owner if it disputes the original finding that it was primarily designed for infringement, if it has since changed its site so it no longer infringes, or even if “the interests of justice require” modification.
This “follow the money” approach would give copyright owners tools they don’t currently have to help reduce the harmful effects of online commercial piracy. It does so in a way that is fully compatible with our constitutional and civil rights and preserves the openness that has made the internet such a vital part of our everyday lives.