I am encouraged by the Internet community’s response to SOPA but we must appreciate that this is merely one more battle in the war between the Hollywood and Technology industries that began in the early 1980s. Every step of the way, a desperate industry facing obsolescence that allegedly exploits the entertainers they claim to represent and eventually resorted to suing a little old lady who didn’t even own a computer has been allowed to wield disproportionate political influence relative to a larger industry responsible for productivity gains, tremendous job growth, and enabling democratic reform around the world. SOPA awoke a sleeping giant, and it’s long past time to fight back and go on the offensive!
The entire US motion picture and sound recording industries generated ~$102 billion in revenue in 2008, and grew only 1.3% over the prior year. In contrast, McKinsey recently estimated the Internet as being responsible for ~3.4% of GDP in developed markets (this is equivalent to ~$445 billion relative to 2008 US GDP of $14.64T) and a disproportionate share of new job creation and overall economic growth. In other words, the Internet, alone, is far more important to our economy than the entire entertainment industry (even when ignoring telecommunications and other technology-driven industries that are threatened by Hollywood’s political influence).
When I went to DC to protest the Digital Millennium Copyright Act (DMCA) in 2000, it was obvious that the recording industry felt as threatened by the Internet as the motion picture industry did by the VCR in the early 1980s. However, when Sony sued to stop VCR manufacturers (who they believed to be enabling piracy), the US Supreme Court ruled that VCR manufacturers could not be sued for copyright infringement and even expanded the “fair use” rights of consumers to include recording of freely broadcast content for viewing at a later date. The majority opinion states:
"The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.”
The DMCA, which passed, changed the law in several important ways. First, it required Internet Service Providers (i.e. your cable company) and user-generated-content services (i.e. YouTube, Wikipedia, etc.) to comply with copyright takedown notices from rights holders promptly. This raises the cost of compliance for products and services with substantial non-infringing uses and puts them at risk of criminal prosecution for copyright infringement. Since the DMCA also indemnifies those providers from liability for takedowns that do not actually violate copyright laws, they have no disincentive to comply promptly with abusive takedown notices.
Second, it makes it illegal to attempt to circumvent copyright protection technologies. Rather than ensuring that consumers maintain their “fair use” rights to media they have legitimate access to, it gives rights holders the ability to arbitrarily lock down purchased content. This law has been occasionally been interpreted as allowing copyright holders to even restrict fair use.
The entertainment industry has also successfully lobbied for multiple copyright extensions. Even though the founding fathers made it clear that copyright was designed not only to enrich rights-holders but also to encourage the production of works that would ultimately pass into the public domain, for the benefit of all, entertainment industry lobbies have cynically argued that the “limited time” copyright length proscribed by the Constitution should be interpreted as “forever less a day.” The Supreme Court has ruled that multiple extensions of the copyright term, so long as the term is not perpetual, are not unconstitutional. As a result, it is up to the legislature to determine the length of the copyright term and there is nothing to prevent the entertainment lobby from obtaining additional extensions.
It is about time the Internet and technology community lobby not only to stop further expansion of intellectual property protections and enforcement but aggressively for a law that counters the worst aspects of existing intellectual property law. We need to ask Congress to adopt an Internet Freedom Act in 2012. We should demand that it, at least, contain the following provisions:
1) Create statutory damages of at least $100,000 per work covered by each invalid or abusive takedown notice, and assign full liability for actual damages resulting from a service provider’s compliance with such a notice to the party that filed the takedown notice.
2) Explicitly remove the prohibition on circumvention of copyright protection technology, in any case where circumvention is required to ensure customers’ full fair-use rights to the media they purchase.
3) Expand the safe-harbor protections of the DMCA to any product or service that has substantial non-infringing uses, irrespective of whether the operators of the service have knowledge of actual infringing uses.
4) Reduce funding for domestic law enforcement agencies that focus on copyright infringement to historical levels and reallocate it to fighting physical treats to Americans’ safety at-home and abroad.
5) Retroactive roll-back the copyright term to no more than 28 years total, as provided for in the first Federal copyright term, signed into law by George Washington in 1790.
We have already stopped a powerful industry lobby from passing anti-consumer, anti-innovation, bought and paid for, legislation. Now, it’s time to take back some of the ground we lost over the last 25 years!