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January 1, 2012

The Danger of an Attack on Piracy Online

By invoking the acronym SOPA right at the get-go, I may be daring many of you to check the next
column over for something a little less chewy. After all, SOPA, which stands for Stop Online Piracy Act,
sounds like a piece of arcane Internet government regulation — legislation that entertainment
companies desperately care about and that leaves Web nation and free-speech crusaders frothing at the
mouth. The rest of us? What were we talking about again?

Stay with me here.

SOPA deals with technical digital issues that may seem to be a sideshow but could become crucial to
American media and technology businesses and the people who consume their products. The legislation
is the rare broadly bipartisan piece of apple pie. The House Judiciary Committee is expected to resume
hearings on it this month and all indications are that it will approve the measure, setting up a vote in the
full chamber. The Senate is also expected to vote on its own version of the bill when it returns from the
holiday break.

Virtually every traditional media company in the United States loudly and enthusiastically supports
SOPA, but that doesn’t mean it’s good for the rest of us. The open consumer Web has been a motor of
American innovation and the attempt to curtail some of its excesses could throw sand in the works of a
big machine on which we have all come to rely.

Rather than launch into a long-winded argument about why the legislation is a bad idea — it is, as
currently written — I thought it might be worthwhile to boil SOPA down into a series of questions.

A NONEXISTENT PROBLEM? Hardly. Regardless of what Web evangelists tell you, SOPA is an
effort to get at the very real problem of rogue Web sites — most operating from overseas — offering
illicit downloads of movies, music and more. The Motion Picture Association of America cites figures
saying that piracy costs the United States $58 billion annually.

Mark Elliot, an executive from the U.S. Chamber of Commerce, said in a letter to The New York Times
that such piracy threatened 19 million American jobs. Those figures surely include some politically
motivated hyperbole, but anybody who has spent time around a twentysomething consumer knows that
piracy is a thorny fact of life for content companies.

In an effort to stanch the flow, on Oct. 26 Representative Lamar Smith, Republican of Texas, introduced
the legislation that has come to be known as SOPA. The Senate version, called the Protect IP Act, is seen
by tech companies as less onerous because it targets domain name providers and ad networks and not 18/01/2012 10:18:51 a.m.

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Internet service providers. Both bills seek to create remedies to pirated content because most of the
foreign-based sites operate outside of the United States’ legal system.

WOULD IT FIX THE PROBLEM? Probably not, and even if it made some progress toward reining
in rogue sites, the collateral damage would be significant. Under the terms of each proposed bill, the
federal Department of Justice, as well as copyright holders, could seek a court order against a Web site
that illegally hosts copyrighted content and then wall off the site permanently.

Under the House version, private companies would be allowed to sue Internet service providers for
hosting content that they say infringes on copyright. That represents a very big change in the current
law as codified in the Digital Millennium Copyright Act, which grants immunity to Web sites as long as
they act in good faith to take down infringing content upon notification.

WHY ALL THE ALARM? The bill has exposed a growing fracture between technology and
entertainment companies. Digitally oriented companies see SOPA as dangerous and potentially
destructive to the open Web and a step toward the kind of intrusive Internet regulation that has made
China a global villain to citizens of the Web.

Entertainment companies think that technology companies are aiding and abetting thieves on a broad
scale, but the legislation is alarming in its reach, potentially creating a blacklist of sites and taking aim
at others for unknowingly hosting a small fraction of copyrighted material. In a joint letter to Congress,
Google, Facebook, Twitter, AOL, Yahoo, eBay and many other companies made it clear that they
perceived a broader threat in the effort to thwart pirate sites.

“We support the bills’ stated goals — providing additional enforcement tools to combat foreign ‘rogue’
Web sites that are dedicated to copyright infringement or counterfeiting,” the letter read, which was
published in a full page ad in The Times.

“Unfortunately, the bills as drafted would expose law-abiding U.S. Internet and technology companies
to new uncertain liabilities, private rights of action and technology mandates that would require
monitoring of Web sites.”

Laurence H. Tribe, the noted First Amendment lawyer, said in an open letter on the Web that SOPA
would “undermine the openness and free exchange of information at the heart of the Internet. And it
would violate the First Amendment.”

You can see why big Internet guys are upset by SOPA. Maybe you and I should be, too.

WHY THE POLITICAL SUPPORT? Various amendments intended to tone down SOPA or limit its
damage were voted down by large majorities in the House Judiciary Committee in mid-December, an
indication that the indignation of various constituencies on the Web is having little impact.

That’s partly because entertainment companies have deep and long-lasting relationships inside the
Beltway. Maplight, a site that researches the influence of money in politics, reported that the 32
sponsors of the legislation received four times as much in contributions from the entertainment
industry as they did from software and Internet companies. 18/01/2012 10:18:51 a.m.

The Danger of an Attack on Piracy Online - Página 3

There is also a cultural divide at work, according to Yancey Strickler, one of the founders of Kickstarter,
a Web site that helps raise funds for creative projects, and a critic of SOPA.

“The schism between content creators and platforms like Kickstarter, Tumblr and YouTube is
generational,” he wrote in an e-mail. “It’s people who grew up on the Web versus people who still don’t
use it. In Washington, they simply don’t see the way that the Web has completely reconfigured society
across classes, education and race. The Internet isn’t real to them yet.”

The debate has highlighted how little Congress knows about the Internet they are proposing to re-tool.
In a piece often cited on the Web, the computer culture journalist Joshua Kopstein watched the debate
in Congress in which members bragged about their online ignorance, and he wrote an open letter on the
technology Web site Motherboard titled, “Dear Congress, It’s No Longer O.K. to Not Know How the
Internet Works.”

Whether they know what they are doing or not, lawmakers seem intent on moving forward.

Congressional supporters of piracy legislation have been in a big hurry because the Web is starting to
come alive with opposition — nearly 90,000 Tumblr users have phoned members of Congress and more
than a million people have signed an online petition protesting the legislation.

Last week, in a much talked about blog post, Declan McCullagh of CNet speculated that even though big
Web companies like Google, Amazon and Facebook are outgunned in terms of political connections,
they have the capability to turn their sites into billboards denouncing SOPA and utilizing their close,
constant relationship with consumers.

I like my movies (and music and television) as much as the next couch potato, probably more. And I
wouldn’t steal content for any reason, in part because I make a living generating a fair amount of it. But
it’s worth remembering that the film industry initially opposed the video cassette recorder and the
introduction of DVDs, platforms that became very lucrative businesses for them and remarkable
conveniences for the rest of us.

Given both Congress’s and the entertainment industry’s historically wobbly grasp of technology, I don’t
think they should be the ones re-engineering the Internet. The rest of us might have to just hold our
noses and learn enough about SOPA to school them in why it’s a bad idea.


This article has been revised to reflect the following correction:

Correction: January 5, 2012

The Media Equation column on Monday, about legislative measures to curb online piracy, misspelled the
surname of a founder of the Web site Kickstarter, who commented on the effort. He is Yancey Strickler, not
Stickler. 18/01/2012 10:18:51 a.m.

The Danger of an Attack on Piracy Online - Página 4 18/01/2012 10:18:51 a.m.

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