Two pieces of legislation weaving their way through the U.S. House of Representatives and Senate came to a crashing halt after a blackout on the Internet caused an uproar among potential voters that sent politicians scurrying.
The Stop Online Piracy Act (SOPA) and its fraternal twin, the Prevent Internet Piracy Act (PIPA) are bills intended to stop online purloining of intellectual property. Big names in the entertainment industry, such as Sony, Disney and Warner, fully backed the bills. However, similar legislation already exists, so we know what their unintended consequences will probably be: the suppression of free speech
In 2008 the PRO-IP Act started allowing the U.S. government to shut down Internet domains if an agency such as Homeland Security thought the site might be infringing on intellectual property rights – no due process required. This enabled the government to shut down companies that did nothing wrong. For example, Homeland Security shut down a music site, Dajaz1.com, because the site contained links to music. Never mind that Dajaz1.com had permission to post those links on its site. It was shut down for over a year with not even the whiff of due process.
The SOPA and PIPA would make life even more difficult for U.S. websites. A clause in the SOPA allows the U.S. government to shut down a U.S. website if it is used in any way to facilitate copyright infringement. SOPA would allow copyright holders to ask U.S. sites to take down links to foreign websites; ad networks and payment systems like Paypal to stop doing business with foreign sites; and Internet service providers to block traffic to foreign sites. If the U.S. website does nothing it could be sued. A judge could prevent a website from earning an income while the case weaves through the court system and this could put the company out of business. The PRO-IP Act has already put companies out of business that have done nothing wrong and the SOPA/PIPA will make it even easier.
A U.S. website doesn’t have to intend or even know some infringing activity is going on. For example, if someone uploads a video to YouTube containing copyrighted material, YouTube could be in trouble even if it had no idea someone uploaded this material. In the worst case, YouTube could be taken offline. In addition to the free speech implications, this could deprive thousands of YouTube uploaders of their property without due process.
The SOPA and PIPA not only threaten free speech by taking down websites that have done nothing wrong, their standards are so vague they can have a chilling effect. For example, what does “takes steps to avoid confirming a high probability” of copyright infringement mean? Website owners may worry they will get into trouble if they do not police infringement enough, and this could encourage them to be skeptical of lawful speech.
Although off the radar screen for now the big names in entertainment behind these two pieces of legislation designed to terminate piracy will, no doubt, be back. The core problem is an entertainment industry which does not know how to compete with new technologies. The entertainment industry showed this when television first came along and again when computers came along. Back then, the entertainment industry adapted using the economic means – it pulled up its socks and got down to business. It didn’t work to stifle free speech.
The entertainment industry’s behavior now makes it look more like a dinosaur on the brink of extinction. Like many businesses no longer able to adapt to a changing environment, it resorted to the political means – a loaded legislator – to solve its difficulties. But manipulating the political system for its own ends will not solve the entertainment industry’s underlying problems – arrogance, laziness and complacency – and has the unintended consequence of putting a chill on speech.
It is possible for Old Media to compete with New Media. iTunes is an example of how the entertainment industry can sell music and movies over the internet instead of invoking the dead hand of government to squash competition.
The solution to the piracy problem is simply stated but very difficult for the industry to carry out. The industry must stop living in the past and innovate to compete with the pirates. Compete on quality, compete on customer service and compete on price. People are willing to pay for value.
Adaptation to a new economic reality is never easy and not because it is technically difficult. It is because it requires a considerable attitude adjustment by the industry. But the industry, not the constitution, must adapt. We must not permit dinosaurs to squash our fundamental liberties.