The problems with SOPA and its sweeping side effects

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Remember that mixtape you made for your high-school sweetheart? Or that time you taped a movie off cable? Turns out you were breaking the law, pirating copyrighted materials without permission.

While the statute of limitations has probably long passed on your crimes of teenage passion, entertainment industry representatives are arguing that the Internet and digital technology are now aiding and abetting billions of dollars of theft every year. They want that money, and they thought they found a way to get it with the Stop Online Piracy Act (SOPA).

Recent debate over SOPA reignited a decades-old debate that started in the 1980s with Betamax and cassette tapes: If consumers have access to technology that allows them to duplicate and distribute copyrighted materials like films and music, then how far can media companies go to protect their property?

On the surface, SOPA seems like a fairly agreeable concept. After all, copyright owners have a right to be paid the income they've earned -- no different from the owner of a bakery selling bread. Stealing bread is a crime. Stealing a car is a crime. Stealing music and movies is no different, and that's the innocent and seemingly logical formulation SOPA supporters used to sell the legislation. But it's a bit of an oversimplification.

The problem with SOPA is that while it appears to be a solution to intellectual-property theft, detractors argue that it's not, because the collateral damage to web-based businesses, average web surfers and music fans alike would undermine any benefits of the legislation.

To make a sports analogy, the NFL has rules that penalize players for unfair or dangerous behavior, whether it's a neutral zone infraction, a personal foul or suspension. While the league doesn't like violations of its rules, no one wants to set up a system that would make it impossible for football players to break rules -- even though it might be safer that way -- because such changes would completely ruin the game.

But could the legislation really have been as bad as it was made out to be by the opposition? The short answer is yes.

When SOPA was quietly introduced to Congress last October by Representative Lamar Smith (R-TX), it was hardly the first piece of legislation of its kind. Ever since Metallica sued Napster -- ultimately leading to the file-sharing site's demise in 2001 -- legislators have been scrambling to pass laws to rein in the free distribution of intellectual property on the Internet. Essentially trying to mirror the tangible world of goods and services, lawmakers have been clumsy and heavyhanded in trying to regulate the digital marketplace.

In 2008, George W. Bush signed the PRO-IP Act (Prioritizing Resources and Organization for Intellectual Property), which increased penalties for those found guilty of copyright infringement, but there was still the issue of who was guilty for such crimes. The Internet was still a Wild West of anonymous transactions, most of which were protected under the First Amendment.

In the fall of 2010, the COICA (Combating Online Infringement and Counterfeits Act) sought to address this problem, but was killed in the Senate, primarily due to opposition by Democratic Senator Ron Wyden, who stated that the bill was like "using a bunker-busting cluster bomb when what you really need is a precision guided missile."

The bill was rewritten as the Protect IP Act (PIPA), which is the Senate sister bill of SOPA. Both bills became household names after last week's protests, but when they were first introduced in response to overwhelming pressure from companies like Viacom, NBCUniversal, Nike and the Motion Picture Association of America (along with many others), they were relatively popular. At least in Washington, D.C.

It didn't hurt that mass amounts of cash were being funneled into the offices of members of Congress in hopes of cracking down on Internet piracy. Last December, with issues like payroll tax cuts and a controversial military defense bill taking up headline space, there was little media coverage of a decades-old issue like online piracy. SOPA and PIPA drifted under the radar.

All that changed last Wednesday, January 18, when Wikipedia and Reddit, along with thousands of other sites, hosted a 24-hour blackout in protest of the bills. The demonstrations came on the day that the House Judiciary Committee would be discussing SOPA, and followed on the heels of an announcement by the White House expressing President Obama's opposition to the bill, stating that it would "kill innovation."

Wikipedia encouraged all visitors to contact their representatives and express their concern about SOPA and PIPA, bills that could, once made law, lead to penalties of five years' incarceration for anyone found guilty of distributing pirated material (potentially including YouTube and Facebook), as well as shut down any sites that link to pirated material (including search engines like Google).

The day following what became the largest protest in the history of the Internet, congressmen and senators (many who once strongly supported the bills) began backing away from the controversial legislations. Senate Majority Leader Harry Reid, who reportedly received $3.5 million from groups wanting to see the bills pass, came under fire from Republican presidential candidates for pushing forward an unpopular bill.

Other Republican icons such as Marco Rubio and Orrin Hatch also distanced themselves from PIPA -- despite being its original co-sponsors. Two days later, Reid announced that PIPA would be put on hold, while House Judiciary Committee Chairman Lamar Smith said discussions on SOPA would be also be postponed "until there is wider agreement on a solution." Many have speculated that President Obama's rejection of the bills will hurt his Hollywood fundraising campaigns.

SOPA had the potential to completely change the Internet in America, severely limiting access for every person with an Internet connection, regardless of whether or not they were engaged in criminal acts. Even if you never illegally shared an MP3 of your favorite song, SOPA would limit your access to all the sites that were subjects of complaints by copyright holders.

A site like Wikipedia, for instance, could be blocked if the owner of a video or a photograph discovered that users were linking to their copyrighted material. Parts of Google would be shut down for providing links to unlicensed materials in search results, and YouTube would be rendered inaccessible given the volume of illegal content. Even something as innocent as singing a cover song could be considered a violation, if you hadn't paid to license the song from the owner.

Beyond the issues rippling out from some of the web's most popular sites being inaccessible -- something the sites tried to highlight with their blackout protest -- some Internet users could lose all of their legally stored files. That was the ugly truth discovered by millions of the file-sharing site MegaUpload's users last week after the Feds shut down the site and arrested several employees -- including the site's founder, Kim DotCom, at his residence in New Zealand.

The bust of MegaUpload wasn't the first site to be taken down by the US Government, nor was it the first where they arrested people on foreign soil. U.S. Immigration and Customs Enforcement officers arrested British college student Richard O'Dwyer, who ran a site known as TVShack. What makes his case interesting -- besides the fact that he'll be extradited to New York to face trial -- O'Dwyer wasn't uploading any illegal content; his site provided links to locations where people could find unlicensed copies of their favorite shows and movies, like a search engine for pirated programming.

Although he'll face trial in the States for violating copyright law, O'Dwyer's site wasn't hosted by American servers, and he was not coordinating with any U.S.-based sites. He's culpable because Americans could access his site, and he was aiding in the illegal download of items owned by US-based companies. If he's found guilty, he could face five to ten years, even without SOPA.

The media companies that are lobbying to pass SOPA don't actually need the law changed in order to have violators prosecuted. What SOPA would do is make shutting down sites easier by streamlining due process and attacking the means by which pirates profit -- not by selling pilfered loot, but by selling advertising space reaching the millions of people searching for free copies of music and movies.

Copyrighted materials are already protected by the Digital Millennium Copyright Act, which passed in 1998, among several others. The law allows copyrighted material to be pulled from YouTube or a blog if it's posted without permission. Record companies like Universal regularly use the process, including an incident in December 2011 when the label may or may not have overstepped its bounds in a complaint against a video posted to YouTube by MegaUpload.

The two companies clashed over a viral video for the "MegaUpload Song," which inexplicably featured appearances by A-list artists like Kanye West, Will.I.Am and Jamie Foxx, among others. UMG petitioned YouTube to have the video removed because several Universal Artists were featured in the video without permission from the label.

Even though UMG didn't own the copyright to the song, YouTube conceded and removed the video on the grounds of a DMCA violation. The video has since been returned to YouTube, following an appeal from MegaUpload arguing that UMG didn't have the right to have the video removed. If SOPA had been passed, the complaint by UMG might have resulted in YouTube itself being taken down temporarily, rather than just the video.

During his Wednesday night broadcast, The Daily Show's Jon Stewart ran a segment titled "KO Computer." Framing the legislators discussing the bills as having "no fucking clue what this thing [SOPA] does," he then characteristically used several clips of the politicians confessing that they are not "nerds," and that maybe they should find some and ask them what to do. The subtext was that legislators are out of touch with technology, and that it is absurd that they attempt to regulate something they simply do not understand.

The issue has lead many to comment on the relevance of a government run by the aged when ever growing portions of today's entertainment, media and commerce are controlled by the tools of the young. Most agree that we haven't seen the end of SOPA-like bills. Whether through legislators, the courts or other means, corporations with incalculable amounts of wealth and influence will find a way to preserve the fiscal sanctity of their products.

Following last Wednesday's protests, Pirate Bay (one of the most visited websites of pirated material) launched a press release asserting hypocrisy in Hollywood's actions, interpreting history with the claim that the movie industry had originally migrated from the East Coast to California in order to avoid dealing with the Thomas Edison patent on the first motion picture camera.

From cassette tapes to MegaUpload, many are beginning to acknowledge that for some time we've been living in an age where technology moves faster than commerce. And with the strong yet slow hand of government attempting to keep it's thumb atop the whole situation, it seems that, for now at least, it will be business as usual on the Internet.

Which, for some, is no business at all.

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