Op-Ed: SOPA Blackout – The Morning After

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Thanks to yesterday’s high-profile blackouts of Wikipedia, Reddit, and others more Americans are familiar with the Stop Online Piracy Act than ever before.

Dozens of websites went dark yesterday to protest the SOPA and Protect IP (PIPA) bills.

If you’re still confused as to what the fuss is about and need a balanced look at the arguments, I recommend my December primer, “SOPA & PIPA: Can We Stop Online Piracy Without Censoring The Internet?”.

But if you don’t feel confused, chances are that you’ve already picked a side in this increasingly polarized debate. If you ask me, that’s a dangerous trap.

Meet The New Boss.

In the battle for hearts and minds, it’s clear that at least for today, the web lobby is winning.

It’s not hard to see why. For starters, the initial version of SOPA had serious flaws that made for ominous headlines. Its worst facets threatened the integrity of the internet, recommended needlessly harsh penalties for petty transgressions, and gave the government power to shut down websites – even bypassing due process in some cases.

On top of these gripes, the web sector showed PR mastery in an age when the entertainment industry has consistently failed to win over public opinion. A new, powerful tech lobby has arrived, and they’ve been able to easily cast their opponents as Orwellian control-freaks.

For their part, the major record labels have made that pretty easy for the tech sector. The 2000s were a notoriously bad time at the major labels. An early anti-piracy campaign focused on slapping average Americans with excessive lawsuits didn’t help them win many fans, and their chronic failure to innovate helped accelerate an already rapidly-shrinking market share.

But in today’s fight for fairness, we shouldn’t be too eager to abandon one lobby’s propaganda in favor of another’s. The truth is that today’s web companies make tremendous amounts of money by selling advertising on the work of content creators – often without paying them a dime.

If yesterday proved anything, it’s that Universal Music Group and the entertainment sector aren’t the fearsome, well-monied, and most effective lobbying machine in the room anymore. Today, that distinction goes to Google and the new technologies sector.

Web Rights vs. Artists’ Rights

It’s easy to get caught up in the anti-SOPA fervor that spread on Wednesday. So easy, that many sympathizers seemed to forget that the majority of prominent companies who have come out against pro-copyright protections are large corporations that have their own bottom-line at stake.

Although raising awareness about SOPA’s most nefarious shortcomings is a noble cause, there’s more than a fair chance that corporate web giants like Google, Twitter, Facebook, Reddit, Gawker Media, and The Huffington Post won’t stop their crusade once that battle is won. It’s just not in their financial interest to do so.

Right now, I can go to YouTube and dig up clips from many of the most popular television shows ever created. I can listen to most of the rare songs I’d ever want to track down, and I can even watch entire movies. Google makes a fortune in revenue from this kind of YouTube traffic, but in many cases, ad revenues can go to Google and even opportunistic third parties – but not to the content’s creators.

True, there are ways for copyright holders to claim content uploaded without their consent, but the status-quo puts the greatest burden for finding stolen material on to creators rather than on the web publishers and aggregators who make money on the traffic. If stolen content is found and reported by the owner, it is eventually taken down, but lost revenue may be lost forever.

If a record label pulled the same kind of stunt, we’d crucify them.

Infringement Creep

At times, this debate has gone to show just how insidiously copyright infringement has become part of our daily lives.

Yesterday morning, I noticed that the Gawker Media’s Gizmodo website used a drawing of Simpsons character Monty Burns as a central image in their protest of SOPA.  It got me wondering if anyone asked the show’s creator, Matt Groening, whether it we be alright to re-purpose his artwork to support a political cause he may or may not believe in.

(A moderator on the site rationalizes the move by saying “A change in original artistic intent is sufficient to circumvent copyright. Basically he’s not representing Mr. Burns but instead is being used a a graphical representation of politicians/MPAA/Rupert Murdoch.” A mealy-mouthed claim, and a far stretch for the satirical provisions of fair use if I ever heard one.

It begs the question: What if Mitt Romney changed the lyrics to “Imagine” and started using it as his campaign song? Would that be okay too?

Ethically and legally, I think the answer there is a clear no. But on today’s web, things like that happen every day – even  in article headlines and in moderated comments on Gawker Media, a network of professionally staffed news sites that receives over 300 million page views each month and stands as one of the biggest money makers in online news.

There are certainly professional applications where including trademarked images does constitute fair use. When The Daily Show briefly sprinkles branded images into a 30-minute satirical program, that’s a yes. When Gizmodo uses an unpaid artist’s work as the central image on their home page, and uses it to push their own specific political agenda? That should be a big honking NO.

Ask The Right Questions

My point here isn’t to cast internet companies as the villains. If anything, I believe that the most dangerous mistake we can make is to get sucked into a comforting fantasy that there are clear-cut sides for the good guys and the bad guys on this issue.

In the past 24 hours, I’ve seen polarized pro-copyright proponents close their ears to legitimate concerns over SOPA, and I’ve heard charged-up pro-web sympathizers deny that copyright infringement is even a meaningful problem.

But a divisive debate like this one is the last thing we need. The only way to come to a workable solution is to start with the right question. Namely: “How can we rewrite our IP legislation to protect intellectual property rights without destroying the integrity of the web?”

To an objective observer, it should be clear that the original version of SOPA was flawed. It’s unlikely to pass as is, and due to the high-profile campaign against it, the bill stands a poor chance of passing even once revisions are finished.

Unfortunately, when a revised version or a strong alternative does come up for review, there’s a good chance we’ll continue to hear complaints from the web sector. Many of them will be far less noble than the arguments we’ve seen so far. I’ve already noticed, when I talking to technologists with a vested interest in loose copyright laws, that when I explain that I agree with the central arguments against SOPA, I’m welcomed by an entire back pocket full of questionable and self-interested arguments against the broader concept of protecting copyrights on the web. Such questionable arguments include: :

1)“Ugh. We can’t police ourselves for content. That would be so hard!”

I think you’ll find that once we put in place real incentives for online publishers to monitor their content, sites will find creative ways to clean up, faster than you ever imagined. Google is one of the most profitable companies on the web and it rakes in millions in revenue on YouTube traffic alone. If they have to hire a new team of employees to help keep their sites from infringing on the rights and freedoms of others, then so be it.

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  • Zeebrastripe

    “SOPA is flawed, yes. At the very least it should be (and has been) rewritten.”

    I guess this is what gets me. I read the bill and nothing in it seemed very extreme to me. People are saying it is written by old men ignorant of technology and how the internet works. Maybe I am too, so I’m hoping for a more detailed explanation on this. From my understanding, the bill only does a couple of things.

    1. Allows the Attorney General to file a court injunction with the Department of Justice against foreign-based website that’s main purpose is the trafficking and distribution of pirated goods. If the the DoJ approves, a letter is sent to the accused domain holder informing them that they must cease this activity or face a DNS ban, blocking the site to United States net users. Records labels can not arbitrarily block sites it claims infringes, and there is a process chain that must gone through.

    2. The accused domain’s primary function must be that of distributing pirated material, and must also be foreign-based. Sites like YouTube and Facebook would not be affected, as this is obviously not their main function. In addition, US based blogs can already be legally forced to remove copyrighted material or face court action, because of the Digital Millenium Copyright Act. So why people are up in arms about this issue confuses me.

    3. Third party sites (such as search engines) must remove links to infringing sites. People claim this is censorship? But it’s only for things that are illegal. They already do this for child pornography, which is illegal, but no one is arguing violations of free speech. And like you said, enforcing these laws isn’t going to break the bank for Google. Considering the valuation of their company is 4x the entire recording industry combined.

    So my question is, I hear the “SOPA is flawed” thing a lot, but I don’t know what it means, as the bill is pretty straightforward. What would be the alternative? It seems like any effort to fight for IP rights will be met with fierce resistance, like you said.

  • Svyatoslav Pashchenko

    Sorry man, I don’t buy it. No one ever consulted the public on these copyright laws in the first place. If it were about protecting the artists and content creators it would be one thing, but that’s not what these laws are set up to do. Tell me how a law of artists lifespan + 70 years is good for the artist? Copyright laws have always been about protecting profit and never about protecting public welfare or about stimulating creativity.

    It’d be one thing if copyright laws were reasonable like date of publishing + 15-20 years*, which is beyond reasonable for the artist/distributor to turn a profit. However, this attempt to keep content out of the public domain indefinitely is equally ridiculous and until these laws are rewritten I see no point in supporting reform. Reform needs to go both ways. If the mega-conglomerates want the public to give a little on piracy, they need to give a little on the ridiculous span of copyrights.

    So spare me your talks of fairness. Your position is perfectly in line with the authors of SOPA/PIPA and it’s not because you’re trying to protect the artists – you’re trying to protect a business model that’s broken. It’s not much different than the idea of a complete lack of copyrights where piracy is legal. They both take extreme positions where ultimate victims are the artist and society as a whole.

    *And if you really want to be fair to the actual producer – the authors, musicians, painters, and cartoonists – why not set up a law of 10 years of distribution rights for corporations and another 20-30 years of artists right to distribute. Now THAT would be fair – the author actually owning his work once the capital costs of publishing have been recouped. Of course the distributors would kick and scream if anyone ever tried a fair agreement.

  • Hi Svyatoslav,

    I think you’ll be surprised to find that I agree our copyright entitlements take too long to expire.

    I’d be all for shortening them to something closer to what we had before they were extended dramatically in the 70s. If you were to put forward a motion to change the term length of copyrights, I’d sign on. So would Thomas Jefferson.

    However, this is a separate issue from whether or not we enforce our copyrights on the web as fairly we do in traditional media.

    (In fact, if you wanted to start a movement to reduce the length of copyright terms, it would probably be a lot easier to make a compelling case if copyrights were actually being enforced to begin with!)

    It’s also important to remember that the powerful new technology lobby we
    see today is built of companies that make millions by advertising on
    art and media, often without respecting the basic rights of individual
    creators. 

    The Facebooks and the Googles of the world are the record labels,
    the publishers and the distributors of today, all rolled into one. My main point is that we
    don’t give the old media companies a free pass, and we shouldn’t give
    them a free pass either.

    Protecting freedom goes hand in hand with protecting individual rights. The two can’t be separated.

  • Hi Zeebra,

    If you find the time to read through 40 or more pages of the actual bill, which is written in near-gibberish legalese, I think you’ll find it to be anything but straightforward.

    If you don’t have any legal training, you’d probably need a translator to help you even get through the first page.

    That said, the initial version of SOPA did offer some very beneficial protections. It also offered some very dangerous implications. Even the bill’s original sponsors have admitted that much.

    But I think we agree that even after the bill is cleaned up to remove what the majority of Americans would agree are gross oversights in judgement, it’s likely that the powerful new tech lobby (not to mention web-users who have become accustomed to free art and media) will still oppose any reasonable efforts to protect individual creators’ rights.

  • Why should copyright have any time limit for the creator? What if I live to be 100. I created it.
    If I want to hand it down to my children like an expensive painting.
    Isn’t that my prerogative? I’m not sure why it has to become public
    domain. Why does everyone feel so entitled to someone else creation?

    Should KFC be required to give out their recipe since it’s older than 30
    years. The creators and their benefactors should always be able to
    profit from their work. If your only hangup is the length of time than
    only steal from bands who have been around more than 30 years. Just
    because you have a beef with labels doesn’t mean you aren’t stealing
    from the artists.

  • GSanoff

    What  are you talking about? You are making a complete straw man argument. Justin is not arguing in favor of the so called Mickey Mouse Act any more than he is saying vote for SOPA/PIPA as it stands. Where does he make any kind of claim that the extension of copyright in perpetuity makes any kind of sense?

    He’s simply arguing what is obvious to anyone with a brain and/or who works in a field where their work is digitized. And that fact is that if people’s work is distributed for free, there is no way to pay for its production in the first place.  The fact is that if film making, record making, software creation or anything else in the digital world generates zero revenue, the creators cannot afford to continue doing it. Never mind getting obscenely rich or pushing absurdist extension to the copyright laws, which clearly only benefit mega-corporations like Disney.

    The scale of compensation may be well worth arguing about but the necessity of compensation for the hard work of writing software or producing records is simply a statement of reality within our current economic model. No money coming in through sales means no money to pay for movies, video games, records, books or pretty much any other form of entertainment or art. 

    I think the completely valid question Justin is asking is why should Google/Facebook/MegaUpload make money on someone else hard work? Its really rather simple. One can argue about the relative merits of various business models with regards to music, film or IP in general, but if you value creativity in a digital age, there has still got to be a way to pay for it.

  • Josh P

    How is SOPA flawed?  I’m not trying to be rude, that is an honest question.   I’ve read arguments on the web such as – “it will be too invasive, it will be censorship”; but I have yet to see any explanation of HOW it will be too invasive, or how the censorship would be a problem for anyone one the web who isn’t using pirated content.  I just wanted to see if anyone has a clear explanation for how SOPA was “flawed” without having to actually read the bill myself (I might have to try).  Thanks for the article, I think it hits on a lot of important points.

  • Anniehalo82

    I was reading this whole thing through and thinking, “Damn straight!” only to scroll down and see a familiar name (small world!). Well said once again…
    -Annie (Halo)

  •  I agree with Justin ,it’s true that due to SOPA everyone is affected from all directions.I am so pitty on hard working creative professionals who have came up with their potential in these competions.