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By Amber Rose and Barry Shrum
If you’ve cruised the net or checked out your local news any time within the last few months, chances are you’ve heard rumors currently sweeping the United States about two pieces of proposed legislation : H.R. 3261 entitled the Stop Online Piracy Act (“SOPA”) and S. 968 entitled the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (“Protect IP”).
Senator Patrick Leahy sponsored the Protect IP Act, proposing it to the full Senate on May 12, 2011. SOPA is the House of Representatives’ equivalent. The government is promoting these acts as a way to decrease online piracy, something that is costs the creative industries millions of dollars each year. The Record Industry Association of America, representing the music sector, has estimated that global music piracy causes $12.5 billion of economic losses every year, 71,000+ lost U.S. jobs, $2.7 billion in wage earnings, $422 million in lost tax revenues, $291 million in personal income tax and $131 million in lost corporate income and production taxes. Even these calculations create volumes of debate among the Internet blogosphere as to their methodology and accuracy. Most every credible source, however, agrees that piracy causes significant economic loss to the creative community.
After years of fighting the piracy in courts, most website that make infringing materials available have moved their operations offshore in jurisdictions where the long arm of the law does not reach. The Protect IP Act addresses this jurisdictional problem by giving the government the ability to established a list of “rogue websites dedicated to infringing or counterfeit goods ” and then proceed to curb access to these websites by literally squeezing their revenue streams: VISA, MASTERCARD and various ISPs. Protect IP has a heavy focus on those websites located outside the United States.
Leahy based the Protect IP Act on a bill he previously proposed called Combating Online Infringement and Counterfeits Act (COICA). This bill failed to receive a full vote in the Senator mainly due to Democratic Senator Ron Wyden who put a hold on the legislation, claiming using COICA was “…almost like using a bunker-busting cluster bomb when what you really need is a precision-guided missile.” Wyden felt the damage done by COICA would cost “…American innovation, American jobs, and a secure Internet.”
SOPA goes further than Protect IP by also providing a private right of action on the part of copyright owners, giving individuals and corporation with a stake the ability to appeal to the government for relief. If enacted, SOPA would lead individuals being able to barring online advertising networks, PayPal, and other payment companies from doing business with the infringing or “rogue” website. It would also prohibit search engines such as Google and Yahoo from linking to these sites while also requiring Internet service providers to block access to such websites. This legislation would make “unauthorized streaming of copyrighted media” a felony.
Opponents, such as the Electronic Frontier Foundation, argue that this would create situations where websites such as YouTube and Tumblr might be deemed “illegal,” in direct violation of Federal law. There is no end to the drama that has been created, including use of such words as “censorship” and such “Chicken Little” mantras as “the Internet as we know it may come to an end.”
While these bills certainly have many who oppose them, including Google, there are some powerful supporters of the bill, including the United States Chamber of Commerce, as well as large online retailers such as L’Oreal and the NBA. David Israelite, President and CEO of the National Music Publishers’ Association believes that SOPA is just what America needs. According to Israelite “…[d]igital revenue streams are key components of our industry’s future” and though we are making progress it is threatened by “criminal activity” that takes place on websites based outside of the United States. Infringing sites typically experience enormous traffic and thus are making millions off of ad revenues. Israelite feels U.S. manufacturers are struggling to compete, as does the U.S. Chamber.
While SOPA and the Protect IP Act are a bit different from COICA, they are still built around the same concept of restricting revenue flow. At first glance the bills seems to be a source of relief for the industry, but upon closer examination, it appears that such relief may come at a high cost. These are difficult issues that are not easy to decide. On the one hand, copyright, trademark and patent owners indeed deserve the right to be able to monetize their intellectual properties, a right established by our Forefathers in the U.S. Constitution at Article 1, Section 8 Clause 8. Jefferson and Madison had many debates about balancing that government-granted monopoly against the free exchange of information they desired to establish in a “marketplace of ideas.” This leads to the other hand, which is that censorship of ideas was what our Forefathers were trying to guard against by establishing the “for limited times” language of the Constitution, which thrust a work into the public domain for all to use. Now that the U.S. duration of copyright exceeds four generations (Life +70), the idea of potential government censorship of website should cause us greater concern.
The one thing I haven’t seen from either side is a solution that protects the interests of the copyright owners as well as the interests of the public in accessing information. Perhaps if the definition of “rogue websites” were more specifically defined, and there was some form of judicial oversight involved, where due process could enter the equation, the legislation would be more palatable. Either way, if you are in the creative industries, this is legislation you should examine and about which you should talk to your representatives. It is important to exercise your right to be a part of this process. Neither the Senate nor the house has taken a vote on the legislation.
Your House representatives can be found at the House’s Directory and the Senates Directory. Texts of both bills can be found at the Library of Congress’ website, at http://thomas.loc.gov, or click below:
Amber Rose is enrolled as a student at Belmont University’s Mike Curb School of Music Business in Nashville, Tennessee. She is currently studying copyright under Professor Shrum.