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.
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.
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: :