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The copyright standoff: Technology pits bad rules vs. no rules

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So, no, Google didn't buy off the House.

Like all those organizations, Google has its interests in Washington — mainly, in keeping potential trustbusters out of its face, but also in fighting other matters, like possible privacy regulation. Meanwhile, however much political muscle the tech industry might have built up in recent years, it's nothing compared to the might of the copyright industry, which has been working Congress since before the silent film era. No representatives are as "captured" (to use a term of art) by Big Tech as Lamar Smith is by Big Media. Smith, a Texas Republican and the lead sponsor of SOPA in the House, got $133,050 from SOPA supporters in the two years before July 2011, according to Maplight, an organization that tracks campaign finance. Co-sponsor Howard Berman, a Democrat from the district that encompasses Hollywood, got $328,400 from many of the same sources during that period. (One of the striking things about the piracy debate is how nonpartisan it is. There are Democrats and Republicans on both sides.)

Lobbying surely played a role, but the bills were shelved when massive numbers of people on the Internet decided they were a bad idea. Following the blackouts, public opposition reached a peak, with congressional representatives deluged with citizen complaints, Internet users flocking to comments sections to register their disgust, open letters signed by tech execs and public-interest advocates published in major newspapers, and a statement from President Obama opposing SOPA.

"When Reddit, and especially Wikipedia, went black, that was a huge statement," Ohanian says. After that media could no longer ignore the bills.

The underlying reason for the outrage was that SOPA, in particular, represented everything that's wrong with the copyright industry's approach to combating piracy. It was aggressively clueless about how the Internet works. It would have transferred responsibility for illegal downloading to people and companies, like Google, that have nothing to do with pirated materials. Under one interpretation, it could have made a private citizen who simply linked to a site that offered unauthorized material liable, even if the link itself wasn't to anything illicit. Sites like Etsy, YouTube, and Flickr would have been made legally responsible for everything posted by their users, which could have rendered the operation of such sites impossible.

Further, SOPA would have allowed judges to issue orders, absent any due process, to block a site from linking to another site where unauthorized material might be housed. And networking experts said that provisions for blocking access to domains could have wreaked technical havoc.

There were many more problems with the bill — nearly all of them stemming from how terribly it was written. It was so vague that nobody on either side had a clear idea of who would be held liable for what actions.

Each side had business interests at stake, but the copyright industry, as usual, was far more wrong than its opponents. After all, this is an industry that spent years believing that suing its own customers was the best way to combat piracy. That strategy sent more than a few people into poverty for downloading a few songs, and the music business (or at least, the record-label business) imploded anyway. This attitude is endemic to the media industry. Jack Valenti, president of the MPAA, told a congressional panel in 1982 that "the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone." Nothing has changed. During the SOPA debate, Chamber of Commerce Vice President Mark Elliot made the insane claim — during a congressional hearing, no less — that foreign pirate sites "threaten more than 19 million American jobs," a figure that is basically made up. The media business has always been paranoid about new technologies, and it probably always will be.

But if the aim is to reach a reasonable compromise, the copyright industry's opponents aren't helping much. How much piracy has hurt, say, the music business is open to question — one that is complicated by the industry's own woeful mismanagement. But although the media industry has done a breathtakingly bad job of making its case, that doesn't mean it has no case to make. Piracy is not an existential threat to the movie and television businesses, and the evidence suggests that the industry has suffered far less than it claims it has — but probably more than its critics assert.


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Dan Mitchell
Contact: Dan Mitchell