The Battle for SOPA, Stop On-line Piracy Act: Who is going to control the Internet?

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On October 26, 2011, a group of bipartisan sponsors introduced the Stop Online Piracy Act (SOPA), known as H.R. 3261 (renamed E_PARASITE), to the House of Representatives. Originally, the intent of SOPA was to shut down foreign websites that infringed on U.S.-created intellectual property.

Under the proposed bill, any unauthorized streaming of copyrighted material would become a felony. The Attorney General could order Internet service providers and payment processors to cease doing business with websites that infringe on federal intellectual property laws. Property right holders would also be able to seek relief through court orders. The bill’s intention is to protect the intellectual property industry in the U.S., limit the trafficking and abuse of copyrighted material created in the U.S., and give the Attorney General and copyright holders the power to seek court orders against websites accused of facilitating copyright violations. Technically, the bill will allow the U.S. Government to draw a blacklist of websites and manipulate the Domain Name Servers (“DNS”) to limit the option (and freedom) of consumers to reach certain websites.

In order to better understand the problems surrounding the protection of intellectual property in the U.S., SOPA should be read in conjunction with the Protect IP Act, (S. 968, its Senate counterpart, and that will not be discussed here). SOPA is currently before the House of Judiciary Committee under discussion for amendments.

SOPA is drawing attention because it involves a critical issue: who and/or what entity is going to control the flow of information over the Internet? This will affect both the Internet’s vitality and the way in which the Internet is governed. In brief, will Internet users still be allowed to download movies, music and books for free? What line can be drawn between protection of intellectual property rights and openness, privacy, and creativity?

Which is the shape of this “battlefield”?

Sustainers: The bill is sustained by those who want to defend the intellectual property industry in the U.S. as a powerful job and revenue creator. Almost a thousand American companies that are supporting the bill in Congress, including Coca Cola, BMI, CBS, Disney, EMI, ESPN, Estee Lauder, Hachette, Harper Collins, L’Oreal, Macmillan, McGraw Hill, MasterCard, NBC, Pfizer, Revlon, Sony, Tiffany, Time Warner, Universal Music, Viacom, Visa, Adidas, Acqua Panna, Bottega Veneta, Calvin Klein, Celine Dion, Christie, Dasani, Dell, Garnier, Gerber, Haagen Dazs, Jennifer Lopez, Karl Lagerfeld, Kenneth Cole, Kit Kat, Lancome, Levissima, Maggi, Missoni, Motta, Nestle, Nintendo, Perugina Baci, Playboy, San Pellegrino, Symantec, Wonka Bars, and Xbox,. Some customers are now able to download an app capable of identifying the “bad companies” and their products.  The idea is to protect an industry capable of losing $100 billion in revenue and thousands of jobs annually in the U.S. alone.

Opposition: among the various detractors there are Fight for the Future; I work for the Internet; Wikipedia; NetCoalition, Center for Democracy and Technology, and Protect Innovation. This opposition  claims that SOPA will introduce censorship, reduce innovation, limit the freedom of speech, and limit the flow of information, while exposing U.S. businesses to a broader liability because the terms of the bill are too generic (and subject to wide interpretation). AOL, Amazon, E-Bay, Yahoo, Google, Consumer Electronics, Facebook, Linkedin, Yahoo, Paypal, Twitter, Facebook, Mozilla are among those structuring the opposing front. According to them, SOPA will give the U.S. Government the power to shut down websites, arbitrarily reaching foreign jurisdictions.

Another critical issue is that there is little evidence the bill is going to help either party. Certainly data can be collected after the bill gains full effect, but at that point it could be too late.  As James Allworth noted in his blog few weeks ago, the same issue arose when the industry was afraid of, and tried to ban, the VCR. Ironically, that particular innovation ended up becoming a gold mine for those who wanted to ban it.

Is there a way to balance the two instances? Can intellectual property protection be accomplished while boosting innovation and limiting the theft of ideas and hemorrhage of money and jobs? Freedom of speech does not allow theft of ideas, and privacy cannot be used as a shield to commit crimes.

Technology can come to help us again where – at least at this stage – the law cannot. Simply allowing or banning is not a solution per se. The law cannot work as (and be reduced to) a (simple) “switch”.

There is an entire new industry to develop here; tech companies are able to develop tools to overcome the problem. But the supporting front is lobbying hard for the adoption of the bill. Congress faces a serious dilemma: are we going to risk to create new jobs and revenue triggering a new industry? Or are we going to risk to lose jobs and revenue simply limiting the Internet? One thing is certain: Inaction is impossible for a country that wants to remain at the edge of innovation—a direction must be taken.

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