In the late 1940s and early 1950s Joseph McCarthy was determined to eradicate the Red Scare by accusing numerous Americans of treason and being communists. It resulted in many actors being blacklisted, and resulted in the now infamous question to the “Hollywood Ten” from the House Committee on Un-American Activities – “Are you now or have you ever been a member of the Communist Party?” They exercised their 5th Amendment rights and refused to answer the question, principally because they felt their First Amendment rights were being impinged.
In its current form, the “Stop Online Piracy Act” (SOPA) would allow the Department of Justice and Copyright holders to seek injunction against websites that are accused of enabling, facilitating or engaging in copyright infringement. It doesn’t stop there: It would force search engines to remove all indexes for that site, mandate that ISPs block access to the site, and require 3rd party sites like PayPal from engaging or transacting with the offending website. All because the copyright holder (or DOJ) makes an accusation. The burden of proof is on the ISPs, the search engines and the 3rd party vendors to show that the “offending website” is not violating any copyright (So perhaps Congress should consult the 6th Amendment). The implications are severe even for websites that reference these infringing sites. They could be shut down too.
Let’s be clear, I’m not condoning piracy of any kind. Intellectual Property vis-à-vis copyright is the coin of the realm of many companies, even whole industries like Publishing, Media, Software, and yes, the Entertainment world, and they should protect their assets. They should derive value and profit from their IP. An author who pours their heart into a publication, or an artist whose performance I like should be paid. Likewise, content producers – studios, publishers, media companies – should be able to garner payment for their role in providing content. But they are looking at the whole piracy issue the wrong way.
Brute-force tactics to protect copyright have been epic failures. DRM approaches don’t work. In fact, they incite piracy, and worse, they harm the very companies they try to protect. In 2007, Radiohead released their album “In Rainbows” DRM-free. A year later, they had sold over 1.75 million copies and 1.2 million fans would buy tickets to their show. Bottom line: Locking down content doesn’t protect copyright holders. Instead, DRM tactics will end up frustrating consumers who legally purchase content but can’t use it or copy it to a new device and, as a result, diminishes revenue. And at that point, the opportunity cost of future purchases with the same DRM constraints will grow higher and higher. Media, publishing and entertainment executives know that DRM has failed, and feel that their only recourse is through SOPA.
There will always be a small percentage of consumers who will use pirated content. But it needn’t be a negative sum game. In some cases, it should be written off as a business cost in order to generate more revenue: a pirated song, might lead to the offending consumer to purchase a ticket to a concert, or to the next movie because they can’t wait. Yet, to prevent wholesale piracy, technology exists today that can protect copyrighted content: XMP (even ODRL can be serialized into XMP), digital fingerprinting for starters. By using these, along with other tools that can scan the internet for matching assets, asset producers can identify and isolate pirated copies. Then they can go after the offending sites directly.
SOPA won’t stop piracy, but it will impact everyone’s access on the Internet. And in that vein, SOPA legitimizes the piracy of 1st Amendment rights, much in the same way that McCarthyism censored free though in the 1950s, simply by accusation of copyright infringement.
NOTE: The views expressed in this post and on this blog are my own. They do not reflect the views of my employer, its employees or its partners.