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Reflections on the SOPA opera

Nancy Clare Morgan, J.D., is an instructor in the James L. Knight School of Communication.  Here she shares thoughts about the recent SOPA controversy.  She says she studied Intellectual Property at Columbia University back in the dark ages, when rogues still shared music files on Napster.

Wikipedia was dark.  Google redacted its iconic homepage doodle.  And I was watching for rain.  Well, I was listening to "Watching for Rain," my friend Anne Trenning's 2009 album.  It seemed the proper background music as I pondered her latest Facebook status:

‎"Illegally downloading music is no different than going to Starbucks and buying a coffee, and then stealing a CD when you leave."

Anne was making a point about intellectual property rights.  She wants to ensure that artists like herself receive some type of payment whenever people download, buy, sell or otherwise enjoy their work.

Other parties much larger and wealthier than Anne, such as the Recording Industry Association of America (RIAA) and the Motion Pictures Association of America (MPAA) want the same thing.  Within the United States, artists and producers rely on the Digital Millennium Copyright Act to protect their interests.  But they are concerned about rogue international websites, virtual pirates outside the reach of U.S. law whose actions "are harmful to consumers and threaten American jobs."[i]  

So these parties asked Congress for help.  And by asked, I mean gave money to those in a position to legislate for their cause, such as House Judiciary Committee Chair Lamar Smith (R-TX), who received more campaign contributions from television/movies/music industries over the last two years than any other interest group.

Help came in the form of H.R. 3261, otherwise known as the Stop Online Piracy Act, or SOPA.  Originally introduced on Oct. 26, 2011, by Rep. Smith and 12 co-sponsors, SOPA went through a hearing and a "mark-up period" late last year.  Its partner legislation in the Senate, the Protect Intellectual Property Act (S. 968 or PIPA - pronounced like Kate Middleton's paparazzily challenged sister), was scheduled for a vote on Jan. 24.

SOPA is now best known as the bill that sparked a World Wide Wail.  On Jan. 18, Wikipedia shuttered their English language site in protest - a move that the Wall Street Journal reported could block 10 million viewers. Google, BoingBoing, Reddit, Mozilla, Wordpress, and Twitpic also participated in the digital remonstration, which brings me back to my friend's Facebook status.

SOPA's creators say they designed the act to stop illegal activity - the shoplifting of CDs in Anne's analogy.  The protestors, on the other hand, argue that the bill goes too far.  It allows music labels to demand that Starbucks barricade the door, suppliers cease deliveries (no more Cranberry Bliss® bars!), and others remove the coffee shop from the white pages, the Yellow Pages, Yelp, Foursquare, and Google maps.  All of this without proof of any actual thievery.

Unlike PIPA, which focuses on advertisers and financial conduits like PayPal that support rogue sites, SOPA goes after Internet service providers.  ISPs that receive a court order must take action to prevent access to a targeted site within five days. The goal is to make the infringer vanish altogether.  However, tech companies argue, this can only occur at great cost to established companies and perhaps prohibitive cost to smaller ones.

Aside from cost, the main questions that anti-SOPA protestors want pro-SOPA lawmakers to address are those of collateral damage:  law-abiding websites, privacy, security, and free expression may all be at risk with this Act.

Under SOPA, ISPs may cut off websites believed to violate copyright without a court order - online blacklisting.  SOPA could also demand Internet service providers block specific URLs suspected of piracy, which experts say requires them "to intercept and analyze customers' Web traffic."[ii]  And, since SOPA targets any Website that offers goods or services to users within the U.S., there is a good chance that it will sweep up expression beyond just "incidental speech" (which, as MPAA's attorney, the venerated Floyd Abrams, points out, is OK to block).[iii]  For example, a whistleblower site that posts internal corporate documents could land on the blacklist.  Chilling.

Anne was in the minority among my Facebook friends that Wednesday.  Far more posted a link to Google's anti-SOPA petition. But this debate is more than just musicians vs. techies.  It isn't Los Angeles vs. Silicon Valley or even lobbyists vs. the 99%.  After all, computer/Internet companies rank fifth among interest groups that donate to Lamar Smith.

The SOPA protests instead highlight the difference between those holding onto the past and those embracing the present, if I may be so abstract.  The MPAA is reacting in the same way they did in 1982 when threatened by "a thing called the video cassette recorder and its necessary companion called the blank tape."[iv]   When lawmakers make the mistake of trying to protect a minority interest group that uses outdated distribution models - particularly one that is desperate to protect itself - at the expense of a more technologically progressive and democratically motivated community - and the Internet is a community - the result is 4.5 million signatures on Google's petition and 300,000 citizens emailing or calling their representatives.

The protest worked... for the time being, anyway.  On Jan. 20, 2012, Rep. Smith tabled the bill with this statement:

"I have heard from the critics and I take seriously their concerns regarding proposed legislation to address the problem of online piracy. It is clear that we need to revisit the approach on how best to address the problem of foreign thieves that steal and sell American inventions and products."

Now, however, the wired, world-is-flat, click-here community must prove it has an attention span that lasts beyond the present moment and into tomorrow.  If citizens value the open Web, as well as privacy, security, and freedom of expression, and if they determine that Congress is threatening those values, then the community must continue to care, and take action, even now that Wikipedia is live once again.

It's something to think about every time you walk through the door of a Starbucks.


[i] MPAA blog, January 18, 2012

[ii] CNET, "SOPA's latest threat," November 18, 2011

[iii] MPAA blog, November 10, 2011

[iv] Hearings, HOME RECORDING OF COPYRIGHTED WORKS, 1982

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