Anti-piracy legislation must balance copyright, freedom

Friday, January 13, 2012

There’s an ongoing battle in Congress that will have a significant impact on the future of the Internet, but its roots are in the 18th century.

The Stop Online Piracy Act (SOPA) being considered in the House of Representatives and the companion Protect Intellectual Property Act (PIPA) in the Senate are designed to prevent foreign websites from plundering copyrighted content and distributing it in the United States. Its supporters point to this nation’s very strong commitment to copyright protection. It is so strong, in fact, that it has its origins in the U.S. Constitution, which was ratified in 1789. The notion that creators are entitled to compensation is a core American principle.

Another core American principle was firmly established two years after the Constitution was adopted. With the ratification of the Bill of Rights, America made a firm commitment via the First Amendment that all could speak freely without government interference.

The heart of the debate over SOPA and PIPA comes down to honoring both principles. Those who write songs and books and create art should be able to protect their work and be compensated for it, but we also don’t want to give government so much power that it could cut off the free flow of information.

That problem was reinforced for me this week as I moderated a discussion at the Belmont University Copyright Forum in Nashville. The conversation included SOPA supporters Rep. Howard Berman, D-Calif., and Mitch Glazier of the Recording Industry Association of America, opponent Fred von Lohmann of Google, and Mark Montgomery of FLO, a Nashville-based strategic planning firm, who said he favored innovation over legislation.

All shared concern about piracy, but differed on what to do about it.

There is clearly a problem with the theft of copyrighted material. Pirated movies abound on the Internet, and the recording industry estimates that it has lost half its business to piracy over the last 10 years. This is criminal activity and has to be addressed.

Under SOPA, the Justice Department or a copyright holder can seek a court order that would require U.S. Internet providers to block a website that infringes on copyright and bar financial services and advertising networks from doing any business with such sites. The Senate’s PIPA doesn’t allow copyright holders to initiate action, giving the Justice Department the sole authority to ask a court to intervene. Supporters argue that under both bills, review by a federal judge serves as protection against unjustified government action.

On the other hand, there’s understandable concern about giving the government, regardless of branch, the authority to prevent website content from reaching the U.S. Americans probably wouldn’t be comfortable with such restrictions on other media. How would we feel about a book being banned in America because it used copyrighted photos without authorization? Some critics have argued that WikiLeaks could not be seen in the U.S. under either bill because the site uses classified and copyrighted material without authorization.

Of course, there’s no guarantee that any legislation will put a dent in piracy. It seems as though every time someone shuts down copyright pirates, they pop up somewhere else, like their high-seas counterparts. It does appear, though, that this nation has given up on the idea of that Americans might make the moral choice and not accept stolen material. Millions of Americans have decided that price (free) trumps principle.

Drafting a law to tackle piracy is a delicate balancing act. Any legislation that emerges in the coming months will have to significantly impede the distribution of pirated content to the U.S. market, yet be narrowly tailored in its language so that only content that clearly infringes copyright can be blocked in the U.S. Congress has its work cut out for it.

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