Dr. Geek: SOPA and PIPA: Combating Online Piracy or Curtailing Participatory Culture?
We often hear how the Internet and the World Wide Web were founded on, and should promote, the fundamental tenets of democracy. These technologies should be held as virtual spaces for open public discourse, to encourage conversation and innovation, and to promote the ideals of equality and fraternity around the globe. Being structured and lauded as open spaces, with no one person or group owning this vast communication network, we often see tensions in how these technologies are used. We have seen these technologies be instrumental in giving voice to people who routinely had none, while also being spaces for a furtherance of hate groups. We have seen these technologies promote civic, social and cultural reformation and revolution, while also being tools for government oppression and suppression. We have seen great innovations in creation, culture and commerce, from bottom-up common people users and from top-down corporate users.
It is this last tension that has been making news as of late. The United States Congress is currently considering two legislative bills that would address the concern of online piracy. The issue of online piracy, as it is being addressed in these bills, and the online discourse and actions that are reacting to the bills, highlight a tension between corporate users and common people users of the Internet. A central issue of this tension: who has control over defining the online culture of the Web? By addressing the issue of online piracy, the bills have sparked direct and indirect discussion about the role of copyrighted material in determining online culture, and who has the say over what this role should be. Thus, the democratic processes of the country are being used to address the democratic processes of the Internet.
The two bills in question are the Stop Online Piracy Act (aka SOPA) and the Theft of Intellectual Property (Protect IP) Act (aka PIPA). SOPA was introduced to the House of Representatives in October of 2011 by Lamar Smith (R-TX). PIPA was introduced to the Senate in May of 2011 by Patrick Leahy (D-VT). In an email correspondence with Senator Dick Durbin (D-IL), received on Wednesday, January 17th, he informed me of the nature of these two bills.
“The bipartisan PROTECT IP Act (S. 968), which was based on last year’s Combating Online Infringement and Counterfeits Act, would authorize the Department of Justice to pursue court orders to take action against websites that are dedicated to selling pirated and counterfeit goods.” Senator Durbin is a co-sponsor of this bill. According to Durbin, SOPA (H.R. 3261) has more strident requirements for websites to comply.
At this time, PIPA is up for vote in the Senate on Tuesday, January 24th. As SOPA has received the most attention of the opposition, a planned vote on it has been delayed as it will remain in committee discussion in February. UPDATE: Senator Harry Reid has postponed indefinitely the vote on PIPA, and Lamar Smith followed suit, taking SOPA off the House docket for reconsideration.
What would be the possible legal actions taken against those decided to be in violation of the law? Chiefly, SOPA proposes that after the owner of the copyright recognizes some violation of that holding that owner had three courses of action: 1) ask search engines (such as Google, Microsoft, Yahoo) to remove the site from their listings; 2) ask financial suppliers (such as PayPal, advertising firms) to remove their support of and block payments sent to or received from those sites held in violation; and 3) ask Internet Service Providers (ISPs such as Comcast, Time Warner) to block access to the sites. With the court order, these different types of Internet companies would have a short window of time (about five days) to either comply with the request or petition the court to not perform the requested activities.
In the original language, SOPA would encourage these companies to preemptively perform these actions without being requested to do so: since the protests, the language has been amended to require a court order before any steps are taken to restrict access, but not necessarily to prevent the closing of financial accounts associated with the site. In addition, there is the possibility that individuals charged and found guilty of illegally streaming content could receive a five year prison sentence: according to the language of the bill, this aspect of SOPA could relate to the uploading of materials to video sharing sites like YouTube.
While there are differences between the two bills, the differences are minor, as they both involve the same steps that can be taken by the United States government or the copyright owners to seek action against those deemed to be in violation of the law. Senator Durbin stressed that with PIPA, the goal is to limit the violating foreign website’s financial gain but not the people’s access to it. Indeed, the language of the PIPA bill stresses penalties on finances more than access, and does not include language regarding illegal streaming.
Senator Durbin’s support for these bills is founded on understandable concerns about the impact of online piracy on the financial success of content creators: “Effective enforcement of intellectual property laws is critical to the encouragement of innovation and the creation of jobs. In recent years, we have seen a proliferation of Internet websites that are devoted to the unauthorized distribution and sale of pirated and counterfeit goods. These websites deprive innovators and businesses of revenue and result in the loss of American jobs. In addition, these websites present a public health concern when they sell counterfeit, adulterated, or misbranded pharmaceutical products.”
However, those who oppose the bills do not oppose the need to address the problem of online piracy. Instead, they are concerned that the language of the bills could create a slippery slope. They are concerned that the bills provide too much power to copyright owners (chiefly media conglomerates and their industry-appointed self-regulators like the MPAA and RIAA) over what content is allowable, when and where. By some accounts, the media conglomerates, which increasing own content production and the distribution/exhibition services available via the Internet (see Comcast, Universal, NBC, Hulu.com), may use this legislation to maximize their presence online while minimizing the presence of the competitors.
There is also fear of perhaps seeing the legal ramifications of the laws be applied to the blurry boundary areas that constitute part of the participatory culture that has evolved on, and helped fuel the innovation of, the Internet and World Wide Web. If a person makes a living at some point because of the mash-ups they have created on YouTube, is this piracy? If a person creates a blog that comments on copyrighted music, sharing that music, and makes money via advertisements on that blog, then is this piracy? If a person takes a small commission for selling personalized fan art that depicts copyrighted material, then is this piracy?
In the email correspondence, Senator Durbin addressed the fears of the online community that this legislation could result in shutting down websites that involve people manipulating and/or sharing copyrighted materials not for financial gain, such as reddit, YouTube, and other social media sites. “The bill is narrowly tailored so as not to include legitimate websites and it includes important procedural protections to prevent misuse of this authority. For a court order to be issued, the Justice Department must show that the website in question is directed at customers in the United States and that it harms holders of U.S. intellectual property.”
However, these assertions and reassurances have not quelled the opposition. Along with voicing their concern to their representatives in Congress, opponents have organized protests against companies that support the bills. One form of protest was the threatened boycott of companies, such as the threatened boycott of GoDaddy.com. Another form of protest happened on January 18th, where from midnight to midnight, several high traffic websites, such as Wikipedia, WordPress and reddit, and supporting websites (including venerable actor/activist George Takei’s blog and our own site here at CBR) went dark, preventing easy access to their content during the 24 hours. Designed to show what could happen should the bills be accepted, the protests appear to have had an impact on support in Congress for the bills, with the list of those opposed growing. But perhaps the most telling reaction to the protests was the coverage of the issue in the news media, many of whom had not spent much time covering the bills until Wikipedia and others went dark – including The Daily Show.
On January 14th, the Obama Administration released a response to the discussion and protests surrounding these bills. According to the post on the White House blog, the Administration is taking the stance that any legislation must be careful in how it is worded to address the issue of piracy: “To minimize this risk [to innovation], new legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal activity. Any provision covering Internet intermediaries such as online advertising networks, payment processors, or search engines must be transparent and designed to prevent overly broad private rights of action that could encourage unjustified litigation that could discourage startup businesses and innovative firms from growing.” SOPA/PIPA opponents have interpreted this response to mean that President Obama would likely veto the bills should they pass in their current forms.
In the past, there have been occasions when producers have brought lawsuits against myriad uses of copyrighted material, such as fan fiction, fan art, and fan films, with mixed results and even hostile fan reaction. To the opponents, these two bills appear to be attempts by these producers to legislate what they could not adjudicate. To the supporters, these two bills are attempts to regulate piracy that occurs through streaming, downloading and torrenting sites; piracy that they argue undermines the financial gains of the producers, thereby potentially dissuading their desire to invest in further online innovations.
Both sides have valid arguments. In honor of the democratic principles we all want to believe govern the Internet and World Wide Web, the most important thing is that the decision on these bills be conducted with said principles. In that spirit, I encourage everyone to learn what they can about the intent of these bills, those who support them, and the perspectives of the supporters and opponents. Only by engaging in a democratic process can we fairly determine the future of these technologies, and whether or not they will retain the democratic principles we have invested in them.