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

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So, what to do about piracy? One alternative to SOPA and PIPA is the Online Protection and Enforcement of Digital Trade Act, or OPEN. Introduced by Sen. Ron Wyden (D-Ore.) and Rep. Darrell Issa (R-Calif.) just before the web blackouts, OPEN would put enforcement of foreign-based piracy in the hands of the International Trade Commission. It is, after all, a matter of foreign trade, and the ITC already enforces foreign patent violations. Rather than censor content, impose dangerous technological enforcement methods, or target American businesses linking to sites that offer pirated material, OPEN would target the actual sites by giving the ITC the power to cut off electronic payments to them.

Many critics say it would be toothless. The pro-SOPA forces hate it for that reason. Levine calls it "the not-SOPA Act" and says it was drafted merely to prevent SOPA from passing, which might be true. But it seems like a reasonable approach to attack at the margins of what is, for the most part, a marginal problem.

Another option is to refrain from passing any new legislation at all. There are laws and enforcement mechanisms in place to fight piracy, as shown by the Justice Department's shutdown of the Hong Kong-based Megaupload earlier this year, when several of its executives were arrested in New Zealand at the FBI's request. Such actions would go over better without some of the more extreme tactics that were employed — such as the government's refusal to return legitimate data to customers who had stored it on Megaupload's servers. But the raid showed that the worst players can, at least sometimes, be taken out of the game.

But no matter what approach the government takes, the copyright industry will have to accept some level of piracy as just another cost of business.

Congress won't take up the matter until after the election, and what might happen remains unclear. There might be an attempt to resurrect SOPA, perhaps with some modifications to appease critics. Or there could be an attempt to reconcile SOPA with OPEN or something like it.

Ohanian tends to think not about what should be done to fight piracy but what shouldn't. If Congress comes up with another SOPA, he and his allies are likely to oppose just as stridently. Whatever his response is, though, he promises it won't be him or any other "leader" calling the shots. "There is no leader," says the man Forbes magazine recently dubbed "The Mayor of the Internet." Decisions about how to react against Big Media's overreach "come from the bottom up," he says. "Ultimately, the power lies with the people — I have to believe that."

Dan Mitchell has written for Fortune, the New York Times, Slate, Wired, National Public Radio, the Chicago Tribune, and many others. He writes a weekly tech column on SF Weekly's Snitch blog called Digital Tremors.
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Dan Mitchell
Contact: Dan Mitchell