Why I Blacked Out: Thoughts on SOPA and PIPA

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UPDATED January 20, 2012

For those few who follow my blog, you will know that yesterday I blacked it out in solidarity with other sites like Wikipedia and Reddit in protest of the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA). These bills are incredibly dangerous, but they need some explanation. Several good explanations have been given by others online, but as someone who has watched the fight over intellectual property online for years, I would like to give my own take on this. I’m not going to go into the legalese of it, but I will give my opinion on the basics and in a historical context. I will start by giving the main point of this article in two parts:

SOPA and PIPA have little to nothing to do with protecting intellectual property. They are solely about control of the medium and, therefore, the message.

Yes, that is a Marshall McLuhan reference.

Copyright and intellectual property disputes have a history of abuse in the U.S. Even before the internet as we know it, there was a rather famous case where Universal sued a budding video game developer called Nintendo for infringing on their intellectual property “King Kong” with the game called “Donkey Kong.” A large, wealthy movie studio and distributor was using copyright law to beat down and try to get a piece of the pie from a popular game in the fledgling video game industry of the early ’80s. Just as it seemed that Universal was about to win or Nintendo was going to need to settle the case just to prevent an expensive legal battle, it was revealed that Universal didn’t actually have the rights to “King Kong,” and had in fact argued that “King Kong” was in the public domain years before. Without this revelation, who knows what could have happened in technology and entertainment, but it is worrying to think about how close things came, simply over a claim of copyright infringement by a party with lots of money against a little guy who had little at that time.

Under current U.S. Law, we have the Digital Millennium Copyright Act (DMCA). Passed in 1998, this was intended to protect intellectual property online, or at least that was the story that was given for it. Like SOPA and PIPA, it was extraordinarily shortsighted, and failed to grasp the magnitude of the internet and the fact that it’s a global system, not simply a U.S. property. Most cease and desist letters for infringement on copyright that get things taken off Youtube or other sites are based on claims under the DMCA. This was the primary reason that Napster was originally taken offline.

However, when the DMCA went into law and the first infringement letters were sent out, another battle began, and certain truths began to come out. Let’s take the music industry as an example. Here, this battle arose between the actual artists and major record labels. People began to understand that most artists don’t get that much off of their record sales, but that most of the money went to the label instead. In short, the DMCA was not protecting the artists, but was instead protecting a business model that was fast becoming outdated. It was the labels refusing to change their business model, feeling that they should continue to do business the way they’ve always done and make money the way they always had. And, boy, have they gone kicking and screaming into the new millennium.

You see, the problem is that under the old system, artists needed the labels. There was no way they could get their material out into wide distribution without them. But, suddenly, artists didn’t need the labels anymore. Under a new online system, the “industry” could be bypassed and would no longer be needed. Of course, that didn’t stop them. They brought lawsuits against people for file-sharing with dubious evidence at best, and most people have settled these lawsuit because they can’t afford the same legal bills the industry can. Money isn’t the result of lawsuits anymore; it’s how they’re won.

The DMCA has been used in other, chilling ways, mostly to silence criticism and free speech. One example was when the Church of Scientology attempted to silence their critics online by claiming that by revealing their secrets, the critics were infringing on their intellectual property and, therefore, violating the DMCA. Again, it’s about controlling the message.

Ultimately, the DMCA has proven to be rather ineffectual in maintaining control. It requires too precise a strike each time, having to cite each individual instance and giving the violator an opportunity to remove the offending material. Something that is difficult to do, since many have discovered that once something is out there, it’s nearly impossible to remove it from the internet. This is where SOPA and PIPA come in.

Under these acts, a mere claim of infringement could have an entire site taken down or blocked. Think of it this way: Under the current system, if someone posts something to Youtube that infringes on copyright, they would notify Youtube of the infringement, and the infringing material is taken down. Under these new proposed laws, the whole of Youtube could be taken down. And I need to point out something here. This is not if the a case gets brought to trial and they’re found guilty. This is if there’s a claim of infringement. In short, it could be used to silence critics immediately, as the DMCA has been used to do, and effectively puts into U.S. Law a variation of the atrocious British libel system, where a claim of libel is already assumed to be true and the defendant must prove their innocence, usually against a party who has many more resources at their disposal to fight in court. In other words, we’re talking about the end of fair use and free speech.

Should artist be protected from having their intellectual property stolen? Yes, although as an artist myself I have to admit that I’m not exactly impartial. However, these laws not only go too far but don’t protect artists. They protect controls put in place by large industries. They protect industries, outdated business practices, and those with resources vastly exceeding those available to the little guy. You see, on the internet, we’re all equals. Everyone can have an equal voice. It’s the ideal democracy, the very essence of “one man, one vote,” where I have the same say as, say, the CEO of a major bank. Under these proposed laws, that could ends, as the little guy gets silenced immediately and will be unable to defend himself against the resource of those who will win simply by outspending them in the ensuing fight. The internet allows the bypassing of these old systems. A recent example would the Occupy movement, which was a genuine grassroots movement where information circulated primarily through the internet because at first the major media outlets refused to even recognize its existence. When Occupy became a significant meme online, the media companies had no choice but to address it. Under these laws, any speech by could be silenced if someone says so. Chilling? I would say so, and it violates one of the basic freedoms we are supposed to enjoy in the U.S.

However, as I write this post, lawmakers are taking note. Even former co-sponsors Roy Blunt and Marco Rubio have withdrawn their support in the face of massive public outcry. You may notice the ribbon in the upper right corner of this site. This will remain up through the scheduled vote on January 24. Clicking on it will take you to the Stop American Censorship page where you can sign a petition where you can make your voice heard. I encourage you to make you voice heard. They’re listening.

Update (1/12/2012):

We won! Sort of…

The SOPA and PIPA bills have been postponed indefinitely. However, this does not mean that the fight is over. The fact that these were proposed and considered so seriously with so much congressional support is concerning in and of itself. This was not the first time there’s been an attempt to put content control into law, and it won’t be the last. From the CNN article:

“The House will ‘postpone consideration of the legislation until there is wider agreement on a solution,’ House Judiciary Committee Chairman Lamar Smith said in a written statement.”

I will emphasize that these bills are not dead, just postponed. Your voice still needs to be heard, and I encourage everyone to continue writing to your representatives to make your opinion know. But for now, we’ve been heard and listened to, the people won, and independent artists and innovators can enjoy a victory, even if it’s temporary, as the war rages on.

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