In the growing debate over online piracy, score one for Internet companies.
They won a decisive battle last week with a protest that was literally impossible to ignore, blocking access to their own popular websites and logos. But even as the Googles and Wikipedias of the world managed to thwart the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA), two congressional bills they say would have amounted to censorship, they acknowledged that online piracy is a problem that needs addressing.
The question now is: How?
There’s no easy answer, especially given the seeming incompatibility of protecting both intellectual property rights and the open technological structure that has allowed new media companies to innovate and thrive. “What you want is an environment where egregious infringement is removed and then punished and deterred, and you want maximum flexibility for future innovation,” says Allan Friedman, a fellow and research director at the Brookings Institution’s Center for Technology Innovation.
In the discussion of how to accomplish this, one phrase is popping up over and over again, including in lobbying efforts by NetCoalition, a group representing leading Internet and technology companies. The phrase: Follow the money.
“A better and narrower approach would be a follow-the-money approach,” says David Sohn, director of the Center for Democracy and Technology’s Project on Intellectual Property and Technology. “If we had a bill that is narrowly targeted and has sufficient due process to identify who the real bad guys are, without risking sweeping in innocent parties, then the way to then go after those bad guys is to strangle off their money.”Samantha Smith, a spokesperson for Google, echoes that support: “The foreign rogue sites are in it for the money,” she says, “and we believe the best way to shut them down is to cut off their sources of funding.”
Content producers, including the Motion Picture Association of America, claim that online thieves cost the U.S. economy $58 billion annually and more than 373,000 jobs, although most experts say this data is unreliable. These figures assume that everyone who clicked on a movie or downloaded music illegally would have paid for it. The news media plans to fight digital piracy with digital enforcement. David Westin, the former head of ABC News, heads the News Licensing Group for the Associated Press. Their News Registry tags content and tracks its use.
In order to follow the money, Google and others are throwing their support behind another version of the anti-piracy legislation, the Online Protection and Enforcement of Digital Trade Act, or OPEN, which was presented in December as an alternative to SOPA and PIPA, but made little headway at the time. It was officially introduced on Wednesday by Rep. Darrell Issa, R-Calif., and is being co-sponsored by Sen. Ron Wyden, D-Ore.
OPEN would take the responsibility for cracking down on online pirates – and cutting off that funding – away from domestic website operators and shift it to the International Trade Commission. It would also omit the requirement present in SOPA and PIPA for websites to remove all links to infringing websites. Under OPEN, only companies that actually do business with offending websites would have to cut ties, or be involved in the process at all. “[OPEN] looks like a pretty solid effort to address the issue without carrying all the collateral damage of SOPA and PIPA,” says Sohn.
Not surprisingly, the content companies that had backed SOPA and PIPA don’t see it that way. The Motion Picture Association of America’s Michael O’Leary said in a statement that the act “fails to provide an effective way to target foreign rogue websites and goes easy on online piracy and counterfeiting.”
In a blog post earlier this month, Mitch Glazier, the senior executive vice president at the Recording Industry Association of America, noted that the International Trade Commission has taken more than two years to decide on a high-profile patent infringement case. “Why in the world would we shift enforcement against these [foreign rogue] sites from the Department of Justice and others who are well-versed in these issues to the ITC, which focuses on patents and clearly does not operate on the short time frame necessary to be effective?” Glazier wrote.
Still, Eric Goldman, a law professor at Santa Clara University and director of its High Tech Law Institute, sees the act as a potential compromise. “So long as there’s a sufficiently rigorous adjudicative process and it’s sufficiently quick, [OPEN] might balance the concerns of intellectual property owners with the concerns of website users that mistakes will be made,” he says.
While legislation in some form is likely to come to a vote in coming months, not everyone thinks it’s necessary. Copyright holders already have protection under laws currently on the books. “Right now if there’s infringing content on a website, the owner of that content contacts the website that’s infringing, and there’s an adversarial process where the two get to argue whether or not it’s infringing, and it’s ultimately decided by a judge if need be,” explains Friedman. “Everyone keeps talking about a problem that we think is being taken care of in the courts today.”
As the debate builds steam, former Connecticut Sen. Chris Dodd, now head of the MPAA, called Friday for a meeting between the tech companies and content companies, preferably at the White House. The Obama administration has voiced its wish that the two industries work together. And Congress has stepped back from the bills, for the moment.
“These bills need more debate, and it sounds like Congress is now taking the time to take a fresh look,” says Sohn. “And a fresh look is absolutely what’s necessary.”
