Changing the Conversation on SOPA/PIPA


Today, as everyone should know, is the day of the major protests (online and off) against the Stop Online Piracy Act and the Protect IP Act. Thousands of sites, including most prominently Wikipedia and Reddit, have blackened out their frontpage and, effectively, shut down for all or part of the day.

The protests seem to be having an impact. Already two key Senators are dropping support of the bills and support for the bills, which once seemed destined for quick passage, has begun to waiver.

However, I voiced my personal opinions on SOPA and the debate around it last month. To recap, I’m not a SOPA/PIPA supporter and have several issues with the laws as written (though they are being rewritten now), however, the debate around it has fallen victim to buzzwords, over-simplification and hype, creating not only a strong opposition movement, but also an environment where engaged and fruitful discussion is impossible.

My fear in all of this wasn’t that SOPA would be defeated (as I said above and wish to repeat, I am NOT a SOPA supporter) but that the heated rhetoric would be used to attack copyright holders (large and small) who take other measures to protect their work.

Fortunately, that doesn’t seem to be happening, at least not on a large scale. To get such a large voice, many staunchly pro-copyright individuals and the vitriol has mostly been targeted at the acts themselves, not used to defend piracy or attack copyright as a larger issue. In fact, many strong SOPA opponents such as Google, which posted to its Public Policy blog, said that “Fighting online piracy is extremely important. We are investing a lot of time and money in that fight,” and other bloggers are pushing to “End Piracy, Not Liberty,” and “Stop piracy, not online freedom,“.

This in turn, gives me a great deal of hope that the conversation, once SOPA and PIPA are past (regardless of the outcomes) that the newly-aware public will be able to start thinking about these difficult issues in a less-polarizing way and, maybe, work together to come up with real solutions that everyone can live with.

With that in mind, I’m proposing 10 questions that the SOPA/PIPA debate raises in hopes, not so much of starting a dialogue here (though it would be nice) but more to get people thinking about the complexities of these issues and what can be done to respect both copyright (as well as other legal issues) and the Web.

10 Questions to Ponder

Note: Bear in mind that many of these questions don’t just apply to copyright law as other areas of law raise similar, equally difficult issues.

  1. Given that the Web is truly global, how can one nation enforce its laws effectively when illegal content or services are hosted in another nation, perhaps with different laws?
  2. Under what circumstances, if any, should access to a site be blocked on a significant (IE: National) level?
  3. If sites are to be blocked (for any reason), what checks and balances should there be to ensure that innocent sites are not targeted? Which authority should have final say on when action should be taken?
  4. If sites are to be blocked (for any reason), how should this be done and who should have the responsibility for blocking them? Should ISPs have the burden? Would DNS filtering (as with SOPA) be best or would another method, such as IP filtering, work better? Further, how do we ensure security of the Web while ensuring effectiveness of the block (if effectiveness is possible at all)?
  5. What other tools (either in addition to or instead of site blocking) should be used to deal with sites and services that knowingly and deliberately break the law of one country but exist physically in a jurisdiction that, for one reason or another, can not be breached?
  6. Specific to copyright, is a “Follow the money” approach more suitable for dealing with websites dedicated to piracy? Such as what is backed in the OPEN act, which was proposed by SOPA opponents as a compromise and is supported by Google.
  7. Regarding the “Follow the money” approach, would such a system be effective enough to justify the burden placed on payment processors and the risks of targeting innocent sites/companies?
  8. Given that most copyright holders are either small businesses or individuals with limited means. What tools can we provide them, if any, to help them deal with infringement on a global scale while ensuring a free and open Web?
  9. What changes, if any, are needed in the core of copyright law (term, rights granted, etc.) to help balance the rights of content creators with the unique environment that is the Web?
  10. Finally, what business models should content creators be seeking out to help them unlock the business potential of the Web while minimizing the impact of piracy and how can the law be used to support that? Do any changes need to be made?

Bottom Line

These are, without a doubt, big and difficult questions. Thinking about them and dealing with them involves more than just changing your avatar or blacking out your site. While protesting SOPA/PIPA is fine, doing so without answering the underlying questions it raises (and was designed, in part, to answer) simply opens the door for other, possibly worse, legislation down the road.

Once the blackout is done, perhaps we should use the Web as it was intended, as a means to discuss, share ideas and solve problems.

On that note, if I missed any questions, please leave a comment and I’ll add it to the post. I want this to be a forum for conversation on this topic, including all of the tough questions that, as of yet, have not been answered.

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  1. I’m not for the bill either, but I don’t think either the “pros” or the “antis” are even close to correct on this one.

    The “pros” are vested-interest whiners who do absolutely nothing to protect themselves and rely on government to solve their problems for them, something government has long since established that they’re incapable of doing.

    Meanwhile, the “antis” are led by companies such as Google who practice loose forms of censorship, such as the removal of spam from search results. I don’t have any issue whatsoever with them removing spam from their search results; besides providing better quality results, it’s their site and they can do as they wish with it. But by the same token, they shouldn’t be turning around and complaining about anything to do with censorship that potentially negatively affects them, either. They can’t have this both ways.

    What makes it worse is that they’ve gotten everyone else all riled up without even stopping to think of why they’re riled up. Censorship…BAD! Government…BAD! Angry mob MAD! Angry mob SMASH! Angry mob call CONGRESS, except when not in United States, then angry mob sign PETITION! GRRRR!!!!!!! Outside of this site, there hasn’t been any rational discussion about the SOPA topic…it’s just political rhetoric.

    The only thing that’s going to solve this problem isn’t government intervention or angry yelling, but accountability. People need to be accountable to themselves and to others. Government cannot and will not provide this level of accountability…it comes from within each and every one of us to be responsible as individuals. If you see copyright infringement, speak up and report it to the affected party and let them deal with it. If you’re affected, take steps to avoid being affected in the future (like say hiring Jonathan to bust out his mad copyright ninja skills.) If you’re stealing stuff…well…you’ll get yours at some point. Criminals (and plagiarism is a crime) tend to become more aggressive and less careful until they get caught.

  2. “Given that most copyright holders are either small businesses or individuals with limited means. What tools can we provide them, if any, to help them deal with infringement on a global scale while ensuring a free and open Web?”

    The BEST tool is restoring the requirement that copyrights be registered with the Library of Congress (as they were pre-1976), so we’d have a centralized database to work from.

    NOTE: The vast majority of copyrights are held by major corporations like Disney, Time/Warner, Viacom, etc.

    For every story, poem and illustration produced by an individual, there are dozens, if not hundreds, produced for those corporations by staffers or work-for-hire writers and artists who turn the copyrights over to the corporation for a paycheck.

    And it was Disney’s lobbying in the 1970s that started this whole “extend copyright to as near to perpetuity as possible” mess.

    • @Atomic Kommie Comics One problem with that is that the fee to register a work can also be prohibitive. However, it WOULD be good to have a way to register works that does not cost quite so much.

      The problem with SOPA/PIPA is similar to that of the CPSIA – it’s really not written clearly enough, and our laws should not be so open to confusion and broad interpretation. They should not be bought and paid for by corporate interests who don’t care about those small individual copyright owners. And if we cannot adequately enforce laws we have, what makes anyone think that throwing more badly written laws at the problem will help? The CPSIA was a horrible piece of legislation that could easily have resulted in banning children’s books from children under 12. Many bookstores took proactive measures to destroy those books in order to have shelf space for other books – so they could survive and stay in business without RISKING $100,000 PER OCCURRENCE fines – or jail. Whether a law is enforced or even enforceable isn’t always the problem – it’s the cost of continuing to engage in legal activity for fear that it will somehow be construed as illegal that has a chilling effect on lawful businesses. Or, in the case of SOPA/PIPA, continued use of the Internet.

      Jonathan can vouch for me – I’m in NO WAY siding with the so-called “pirates” (and no, Jonathan, the debates did not remain civil or impersonal, not at all), but I’m even more concerned about our Constitutional rights in the U.S., and the notion of our legislators making laws that have such potentially overreaching effects. Especially in light of Citizens United. “Trust us, we’ll enforce them sensibly” does not work for me. Because I don’t, and they won’t. Not unless the rest of us keep an eye on what’s going on.

      • @HollyJahangiri@Atomic Kommie Comics “One problem with that is that the fee to register a work can also be prohibitive. However, it WOULD be good to have a way to register works that does not cost quite so much.”

        You can register a group of items at once to cut down on the cost.

        Besides, who ever said copyright was FREE?

        Getting a license of ANY kind has monetary costs.

        And remember, to be able to sue for damages, you MUST register (before the occurrance).

        Otherwise all you can do is issue a takedown request/order.

        That’s why so much pre-1976 material is public domain.

        The creators and property owners (publishers/movie-tv studios) didn’t even bother to register (or renew) with over half of their output from that period.

        That’s how the 1940s Superman and Popeye cartoons became PD!

  3. I think you outlined the problem better than most. There are problems with SOPA, but the debate seems to be all style and no substance. OPEN may be a better solution, but what’s to stop the same people from making similar inflated–and in some cases, false–claims similar to the ones we see today. I’m sorry, I see no substance to the claim that under HR 3261, the proprietor of any website can be sent to jail as a site “dedicated to the theft of IP property or whatever,” unless they openly thumb their noses as DMCA notices or something.

    I’m just afraid too many people are having fun throwing around words like “censorship” and phrases like “controlling the internet” which take away from real debate. Most likely, this bill will be vetoed, and Obama will be hailed as a hero for “standing up for our First Amendment rights.” But what if someone hammers out certain problems (makes the law easier on minor copyright violations on YouTube, makes the definition of “site dedicated to US property” less ambiguous; I’m just not convinced that the, “they’re going to take away our Freedom of Speech,” or, “we’re becoming a totalitarian regime!!!” are gonna go away no matter how much they do.

    This essay, in fact, is the first time I ever heard of OPEN and I’ve been doing a lot of research on this bill (if I do say so myself) and have read the bill a number of times. I also find it interesting that the actual bill numbers (HR 3261 and S 968) are rarely used, and that the very concept of Fair Use is often referred to in passing and the actual provision (Title 17, Sec 107) is rarely spoken of at all.

  4. I just saw the “OPEN Act” site when FrankieAddiego mentioned it. I’m even less in favor of that than I am in favor of SOPA.

    I wanted to suggest an amendment to one of the lines (the administration of fees to process a complaint should only be imposed if the complaint is deemed spurious or lacking in substance), but I can’t do that. Why? I’m not an American. If you’re going to say you’re “OPEN”, then actually open the doors up to suggestions from anyone.

    I just submitted feedback…let’s see how they handle this.

  5. On the Senate Judiciary Committee’s website, I downloaded a PDF file comprised of Lemar Smith’s myths & facts sheet on SOPA. A lot of it is partisan rhetoric, but in it, he actually goes as far as to say “social networking sites,” and actually names Facebook and YouTube as an example of this. I could be wrong, but I think that if there was a judge who wasn’t capable of figuring out that they had more than “limited purpose” beyond copyright infringement, here’s something right from the horse’s mouth that, I believe, a defense attorney can present to a judge as evidence as to the intent of the bill.

    I’m not familiar with Megaupload, though I have heard one of Jonathan’s (and the other guy’s name escapes me, I’m sorry, I’m new here) podcasts which tells me that they have a shady history and even more shady practices… that the bandwagon jumpers probably would think of as cool or something.

    What honestly surprised me (in a good way) is that so far, I haven’t seen many posts on Facebook (in fact, I don’t recall any except mine) about Megaupload being taken down. I’m not sure what that tells me other than it is a bandwagon and most of the people aren’t attentive enough to the news.

  6. Definitely something that needs to be looked at. In some ways, it’s good that companies that hold the rights to fictional characters have been looking the other way on the way in which fan media borrows their characters without looking, especially some (but not all) comic book companies that realize that most potential clients of comic book artists would prefer to see characters they know to see if, for example, they’re drawing certain characters right.

    The problem comes when a) they decide to arbitrarily flex their muscles for any reason or no reason, and b) that they string people along thinking everything they do is okay as long as they give them credit or something.

    Maybe the law should be changed to support some of this, but it might be better if, on their own websites, these companies posted statements about what they will and won’t allow. If the people who own Star Trek continue to look the other way on fan fiction and fan art, there should be some notice given on a site easily accessible to the public. Something like, “we authorize the use of our characters for non-commercial writing and artwork, as long as a) a particular story is not being rewritten, b) it is not to be distributed for profit, though it may be distributed for the purposes of networking (an art student building a portfolio for instance) and c) the work does not significantly demean our characters, harm minors, or encourage hate crimes,” or whatever they want just to let people know how far they’re “willing to look the other way,” and make it official.