February 2012

Stop Online Piracy Act Problems

By Toby Scott (filling in for Rick Smith)

rants@vcmail.net 

Now that the Stop Online Piracy Act and Protect IP Act (SOPA/PIPA) have been defeated, it is time to look at the dynamics of the conflict between copyright holders and Internet hosts.

If a publisher creates a book, you can do pretty much whatever you want to with it. You cannot, however, photocopy it and then sell the copies. This isn't much of a restriction as it is time-consuming and expensive in paper and ink to make the copies and in almost all cases it is far easier to just buy another copy from the copyright holder. This has long been a precept of US law.

Things changed with the advent of the Internet. Now, you can copy nearly anything and distribute it for nothing. Copyright holders are justifyably irked that the sale of one copy of a work can result in the work being distributed to hundreds, thousands or even millions. What makes it even worse is that in most cases the people making the clones are kids. They have no money, criminal prosecution makes the copyright holders look like ogres and the public thinks the copyright holders are just a bunch of greedy slobs who want to deprive the public of what is rightfully theirs.

So, the copyright holders are attempting to force those who have deep pockets and control some layer of the Internet into being their enforcement arm. This flys in the face of current legal precidents orriginating with the Digital Millennium Copyright Act. The DCMA essentially provides a safe harbor for online service providers as long as they don't deliberately shelter copyrighted information.

SOPA/PITA was essentially an attempt to repeal the safe harbor provisions of the DCMA. Doing so would have made life much easier for the copyright holders. They could go after companies with deep-pockets and force them to take steps to remove copyrighted material -- or even prevent it from being uploaded in the first place.

The problem with this solution, at least as far as the online service providers are concerned, is that they would become (at least theoretically) liable for the publication of copyrighted material. Can you imagine Facebook trying to vet every post of every user before the rest of the public could see it? Could Google possibly know whether the content they index is copyrighted by the owner of the site? I host about 100 websites on my server. In most cases, I have no idea what my customers put up on their sites. Had SOPA/PIPA passed, we would have had to go out of the webhosting business. We don't have the resources to examine the content, nor the deep pockets necessary to fight if someone protests. And you can't just remove the material as soon as someone says they are the owners and threaten you with legal action if you don't remove it. People have already started making the accusation that their work has been pirated simply to shut up viewpoints they disagree with.

It is ironic that just about the time SOPA/PIPA died, they closed down Megaupload, one of the largest file download sites. Megaupload allowed users to create accounts, upload files and share them with friends. Certainly, lots of the material on the site was copyrighted by others, but a considerable amount was also family pictures, company material for sharing with employees and other perfectly legal material. As it stands, no one who uploaded can access their data, so if someone thought their data was safe "in the cloud" they are without it now. It is possible some may be able to retrieve their data, but appears unlikely at this point.

They key here is that a lot of data at Megaupload was perfectly legal. Undoubtedly the majority of it was stolen copyrighted material. Not only is the founder in jail, but several employees are as well. It will be interesting to read the details of the criminal trial, assuming it happens in the US.

The fact that authorities were able to coordinate an international investigation has some believing that SOPA/PITA were unnecessary. Others claim that given that Megaupload was making hundreds of millions of dollars, mainly from people distributing copyrighted material, it is evidence that more needs to be done.

It is one thing to go after Megaupload where it is certain that the bulk of the income comes from illegal activities, but it is vastly different for Facebook, where clearly the vast majority of the material is not copyrighted. How far should online service providers go to prevent copyrighted material from being distributed through their servers?

Perhaps more chilling is the thought that should the US force online service providers to create software to screen content, foreign governments could then require them to screen content offensive to the government. Governments already require that they have a backdoor so they can listen to cell phone conversations, and they restrict search engines from indexing certain sites, so coercing online service providers to toe the line would be child's play. Software that screened for copyright would be more than powerful enough to screen for material critical of a government. That is, of course, if such software could be written in the first place. It's not clear that it could be.

At some point, the whole concept of copyright and fair use will have to be revisited to take into account the technological advances that are rapidly outdating laws that were created 150 years ago. That's going to be exceedingly difficult. And it can't happen until all sides have a reasonable understanding of the issues the other sides face.