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SOPA/PIPA -- The Right Solutions?

AUTHOR'S NOTE: This 26 January 2012 post disappeared when my site was invaded... I've restored it as an FYI about what we do NOT need in anti-piracy legislation.

So, with all the debate about the anti-piracy bills out there, I thought I’d take a look at them both. Here’s my take on ‘em...

When I was sent by a group of composers to D.C. to advocate for their rights at the World Copyright Summit, I ran across the same disconnect between those who create the works and those who distribute/disseminate it. The pervasive tech attitude leaned way to one side in an almost free-for-all philosophy, and the creators were scared that every note they wrote was, somehow, going to be pirated at every turn. Then there were the PROs, but that’s another issue that may never be fully resolved. Oy.

Anyway... Both sides had their heels firmly dug into the sand, and it seems we are still stuck in “no man’s land”mainly because neither side speaks the other’s language, or fully understands the implications in a full 360 view of the issues.

I have read both bills (SOPA/PIPA), synopses from a couple of sources and both sides’ points-of-view summations, and believe that both are woefully inadequate, especially from a tech standpoint. As of January 18, 2012, more modifications to SOPA were made (not all made public), and it lost more of its co-sponsors. Unfortunately, those who drafted the legislation don’t have a clue as to how today’s technology works or impacts the whole piracy issues, and are even less informed as to what it will take to implement WORKABLE solutions without damaging the rights of those how are legally making their works available, or the public-at-large. Some senators have even been almost boastful about how little they understand the computer and Internet. If those drafting and voting on the issue are clueless, and unwilling to listen to those who actually live in the cyber world, how can we think they are actually making informed decisions that not only protect intellectual property, but do not trample on the rights of our citizens?

The senators and congresspersons who support these bills are supporting the IDEA of intellectual property protection.

They know little about the contents and/or implications of either bill, since many don’t read the full legislation -- they get summaries of a few pages, which may or may not be accurate or inclusive.

As for the RIAA, MPAA, and the U.S. Chamber of Commerce who are cheerleading these bills on? They don’t care what we think, want or need. Their concern is the bottom line -- how much money will they get as a result. And believe me, it’s not the artist on the label who will reap the benefit. It’s not the writer of the song who will be getting more money. It’s not the author of the book who will have the lion’s share of what might have been “lost” revenue due to piracy. It is the companies who own the publishing, the labels that own the sound recordings, etc. Just because a few pennies trickle in for each view on YouTube doesn’t mean that particular artist and/or publisher is going to be seeing the money for that view. Such monies go to the labels and publishers -- and, as is the case with a lot of the PRO revenue, the “top performers” would likely be seeing a cut of all net revenues, not necessarily the artist or composer who created and/or performed the work embodied in any given video or whatever. It will all come back to who gets the money from the web sites -- and then where will the money go after collection? Will the artists and composers continue to be ripped off, or will they actually benefit from this legislation? I think it will be the former, and most composers and artists will be no better off than they were before.

Then there’s the whole issue of due process -- you know, the concept of innocent until proven guilty? Here is what section 102 of SOPA says is to be done after a company is served with a removal order:

“A service provider shall take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site (or portion thereof) that is subject to the order... Such actions shall be taken as expeditiously as possible, but in any case within five days after being served with a copy of the order, or within such time as the court may order.”

The removal order is basically created with no more proof than one would need for a search warrant, yet would be treated as if it were a verdict in court that has gone through the process of discovery, presentation of proof/facts, etc. -- nowhere does it give the service provider any real due process. Even if it is only one small section or page of a huge website, the entire site could be made unavailable to all until/unless they go through what is sure to be a lengthy, drawn-out court/legal process that any small to medium-sized business would likely be unable to afford.

The earlier “Protect IP Act” targeted ad networks, domain name system providers and financial companies -- not Internet connectivity providers. It’s a huge distinction. It is currently up to those who own the works to inform a site that their works are being used without permission. Provide the proof and it’s done. Labels, networks, writers, etc. do it every day, and stuff is routinely removed from sites such as YouTube and Google. As for international piracy, there will always be an underground network to circumvent legal methods of obtaining protected works, and neither of these bills address that issue (as it stands, while a domain NAME might be inaccessible, a simple typing in of the domain NUMBER [i.e. 192.16.81] would take you to the offending site that is supposedly inaccessible). There are actually very simple work-arounds if one has any savvy, geek pals. ;) I don’t mean to make light of this, but I think a lot in the two bills lean toward a “throw the baby out with the bath water” approach, which I don’t believe will ultimately solve the problems anyway.

In addition, as Laurence Tribe, a high-profile Harvard law professor and author of “American Constitutional Law” has argued: SOPA is unconstitutional because, if enacted, “an entire Web site containing tens of thousands of pages could be targeted if only a single page were accused of infringement.” Basically, we would be looking at blacklisting an entire site based on allegations for only a minute portion of it, NOT proof of site-wide infringement presented in a court proceeding. The language in both SOPA and PIPA is very broad and much of it too ambiguous to be effective tools against real piracyyet could easily take down sites which are NOT pirating material.

A hypothetical scenario:

Company A creates a website that competes with Company B’s site. Company A isn’t getting much traction -- or may actually even think there’s something shady going on with Company Bso Company A accuses Company B of “infringement”. With nothing more than a single SUSPECTED infringement being named, and without any court appearance, or allowing Company B to provide proof to the contrary, its website is blacklisted by court order. By the time Company B has jumped through the hoops, spending months and months fighting to clear their name, and finally has gotten their site taken off the blacklist, Company B has lost a serious amount of business -- and more likely, been permanently damaged beyond recovery. Company B can’t sue Company A (which is now thriving, due to lack of competition from Company B), their own service provider or anyone else for damages because there was nothing illegal about the reporting or blacklisting of Company B’s site.

I wholeheartedly agree that something needs to be done about the international piracy of intellectual property. I disagree that either of these two bills is the way to do it.

After all, follow the money.... The RIAA has spent millions in lobbying for the bills, and are the strong-arm mooks for the major labels. These are the same folks who, under the dead of night (so to speak), sought to change the 1976 copyright legislation to include sound recordings as automatic “works made for hire” in 1998 so the artists could never begin to reclaim the masters for which they paid, but would, in perpetuity, belong to the major record labels who had recouped all costs from the artists (basically an up yours: “Yeah, you eventually paid for it, but we fronted the money initially, so we decided we own it, despite what the copyright law might say”). Fortunately, their attempts were thwarted. They are no friend to the actual creators of intellectual property.

It is my hope that suitable legislation will be drafted which protects the rights of those who create intellectual property, along with those who distribute it legally, while effectively targeting and prosecuting those who illegally distribute works to which they do not own, control and/or administer the rights.

As the father of a colleague said, however: “You don’t burn down the barn to get rid of the mice.”

I think it’s back to the drawing boardand bring on the cyber geeks, senators, creators and translators for all camps. ;)

And a reminder (from my attorney): All statements above are my opinions and not intended as legal advice or counsel. No warranty or representation is made as to the accuracy of these statements. You should hire an attorney before entering into any agreement or contract. So there!

© 2012 * Gael MacGregor, Independent Music Supervisor *

Gael MacGregor is a Los Angeles-based music supervisor, musician, songwriter, author and advocate for strong intellectual property rights for all content creators.

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