Let's say you go to a Lady Gaga concert. Using your smartphone, you video her performance of "The Edge of Glory." When you get home, you upload your video of "The Edge of Glory" to YouTube and your Facebook page.
Have you broken the law?
Let's say you own a copy of "The Edge of Glory" that you ripped from a CD, and your neighbor wants a copy. So you email her your "The Edge of Glory" MP3 file.
Have you broken the law?
What if you use that MP3 copy of "The Edge of Glory" as the soundtrack to a Lady Gaga video montage you post on YouTube?
What it you downloaded an MP3 of "The Edge of Glory" you found online?
What if you post an MP3 of "The Edge of Glory" to a Web site from which someone else can download it?
Are any of these actions against the law?
And if they are against the law, how culpable is the Web site on which these files are uploaded to or downloaded from?
How culpable are the advertisers who advertise on these Web sites on which these files are uploaded or downloaded?
How culpable are the financial institutions that transfer funds owned and earned to and from these Web sites for advertisements run or commerce conducted?
How culpable is your Internet service provider (the folks who supply your Web connection) for what files are uploaded and downloaded on Web sites they deliver to you, the ads that appear on these Web sites, and the transfer of monies owed and earned through their servers?
Welcome to the wacky and wonderful world of online intellectual property law and cyber crimes the controversial SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act) legislation I discussed yesterday ("Why Is Wikipedia Dark? What is SOPA?") hope to eliminate.
To me, SOPA's reported remedies to online piracy (there's an excellent recap of the law's blanket over-reach at Law.com) remind me of the biblical story of Sodom and Gomorrah (Genesis, Chapter 18). God wants to obliterate the two evil cities, regardless of the number of innocents who may reside therein.
Like many anti-SOPA protesters, Abraham thinks simply destroying both cities is a bit brutal, asking "wilt thou then destroy the righteous with the wicked?" (Genesis 18:23-33) After some mortal-deity negotiations, God promises Abraham to spare the two cities even if only 10 righteous people can be found within their borders.
SOPA's provisions seem to take the opposite punitive attitude. One wicked file could condemn an entire Web site to judicial fire and brimstone.
SOPA's simplistic and reactive Sodom and Gomorrah solution doesn't begin to address what is an extremely complex technical, commercial and even social problem that extends beyond online content and even beyond our borders.
Home-grown piracy has been tamped down in the U.S. thanks to a combination of:
Legislation: the Digital Millennium Copyright Act of 1998 (DMCA) helped codify and prescribe legal penalties for online copyright violators, followed by the similar European Union Copyright Directive (EUCD) in 2001
Carrot: In 2003, Apple's iTunes began to offer cheap, legal online content purchasing. iTunes and its competitors soon made it easier to buy content than to steal it.
Stick: Well-publicized lawsuits (some dubious, some not) were initiated by the motion picture and record industry against individual users, as well as legal actions against Napster and other offending Web sites.
Through these and other anti-piracy actions in the U.S., consumers now understand that downloading pirated content is not only legally wrong but morally wrong.
But as I noted yesterday ("Why Is Wikipedia Dark? What is SOPA?"), SOPA's primary targets are "rogue" foreign Web sites, especially in China and Russia, beyond the reach of American jurisprudence.
Both these countries have been thorns in the side of intellectual property holders of all stripes, not just movies, music, games and books. Getting these and other countries to recognize U.S. intellectual property and patent rights have been as effective as telling a two-year-old to behave.
SOPA/PIPA attempt to cut these rogue foreign Websites off at their financial knees. While noble, the whole idea of solving piracy problems solely via legislative action may be flawed.
As I noted yesterday, I can't make head or tale out of the provisions in SOPA or PIPA, and I'm not an Internet engineer, so I can't suggest changes to either bill that might make them palatable to Silicon Valley.
But I agree with the Consumer Electronics Association (CEA) when it urges Congress "to get the facts about the impact of the bill on our economy and on national security. A good start would be a public hearing featuring Internet engineers and cybersecurity experts."
CEA instead urges support for the bi-partisan (!) Digital Trade (OPEN) Act, which purports to surgically target rogue Web sites without destroying adjacent digital tissue or organs (see a comparison of OPEN to SOPA and PIPA here).
Gary Shapiro, president of CEA, explains:
The process put forth in the OPEN Act is simple and straightforward: it tasks the International Trade Commission (ITC) with the prosecution of violations of U.S. copyrights and trademarks by foreign-owned websites. If the ITC concludes that a foreign-based site is violating the law, the ITC would require U.S. advertising networks and payment processors to terminate services to the unlawful site. This is a smart, targeted approach that shuts down pirates without harming legitimate businesses or unjustly enriching trial lawyers.
We'll see how Google, Wikipedia, et al, react to OPEN.
More than law
In the meantime, ameliorating online piracy will require more than technology and more than legislation.
And petulant anti-SOPA forces in Silicon Valley merely pointing angry fingers without offering viable alternatives doesn't help, either.
May I suggest:
- continuing the education process begun by the publicity surrounding yesterday's Internet blackout protests. The government, the Web and content industries should make it clear what kinds of behaviors by ordinary citizens, such as the Lady Gaga file sharing cited above, are legal or not;
- combine to create some sort of "not-watch list," a list of offending Web sites, and an FAQ on how to recognize illegal content and sites;
- search sites, ISPs, ad companies and financial institutions should publicize self-policing efforts and showcase successful efforts to keep sites legal;
- a social media campaign by anti-SOPA Web entities (Wikipedia, Google, et al) to equate illegal downloading with shoplifting, or otherwise socially demonize cyber content theft until the activity is akin at least to smoking in an elevator;
- Hollywood studios stop acting – or at least appearing to act – so greedy. For one thing, studios should more quickly adopt UltraViolet, an industry effort to make it easier for us to enjoy content we legally buy on a variety of devices and formats, regardless of how or where we originally bought said content (I'll have more about UltraViolet in the next few weeks).
A concerted social, economic and legal effort to combat online piracy would ultimately be more effective than a single piece of legislation, no matter how well-intentioned or written.