“In the Blue Corner, Our Challenger…”

By Dan McPheeters and Michael Stein

In our last post, we explored an element of SOPA that served as a point of division between supporters and opponents of the bill. Today, we look at the dynamics of the fight and the driving concerns of each side. Much of this may be common knowledge by now, but it helps set up our next post, where we explore SOPA in the context of Viacom v. Youtube and try to determine whether this was a unique fight or merely another round of what could be a long war between entrenched content developers and online distributors.

At the legislative level, at least initially, SOPA was surprisingly bi-partisan on both sides of the issue. With Rep. Lamar Smith (R) and John Conyers (D) on one side and Minority Leader Pelosi (D) and Rep. Issa (R) on the other, this was far from the typical controversial bill. Indeed, very little was made of SOPA on a partisan or political level that would illustrate some greater principle (except, as some have said, that we now have more evidence that Congress fails to understand the internet).

On the private sector side, however, the differences were easy to see. On the one hand, the MPAA and RIAA reprised their roles from the mid-2000’s as policemen of content piracy and portrayed the bill as being necessary to preserve an American industry and jobs. They were backed by the House Judiciary Committee and its Chairman, Lamar Smith, who issued a statement maintaining support for the bill the same day last week thatopponents, such as Wikipedia, staged the now-famous internet blackout.

On the other hand, content distributors and access providers such as Google, Yahoo!, Wikipedia, Facebook, etc., vehemently opposed the bill and argued (with stunning success) that the bill would cripple the internet as we knew it, in large part because of the liability provision discussed in our previous post.

The rationale for the division throughout the private sector is easy to understand – while firms like Google and Yahoo! are in all likelihood sympathetic to content providers’ justifiable concerns over piracy, the demands placed on them by the bills threatened their business-model on an existential level; indeed, the bill threatened the viability of Web 2.0 itself. This is because the sheer scale of the internet makes policing popular user-content sites such as Youtube and Amazon, where infringement is most profitable, nearly impossible. Moreover, some services, such as search functions provided by Google and Yahoo!, are based on a passive relationship between the search engine and the sites it finds in a given search – it is not that Google has uploaded all these sites into a database from which it produces search results; the websites merely exist in a way that allows for public access, and Google’s algorithm finds them and provides a path to them for the user.

Under SOPA, these companies would be required to not only take down discrete content, but all other content originating from the owner of the offending site, as well as ceasing financial transactions involving the offending entity. The end result could very well be an internet where content is verified prior to being posted or linked to in a search result so as to avoid the liability imposed by the law. However, the costs of such a regime in terms of capital are enormous, and the end result would fall well short of a “silver bullet” solution. Copyright ownership and infringement are complex questions. To verify every bit of content to clear ownership and/or license prior to it being posted presents a logistical nightmare, assuming anyone wants to wait that long. This cost is precisely the point. To subject every bit of content to ex ante review to ensure ownership, under the threat of criminal sanctions, removes the dynamism on which an entire social and business paradigm depend. And this is before one gets into the messy questions of due process.

On the other hand, one has to have some sympathy for the content producers who must feel as though they are locked in an endless game of whack-a-mole against an ever growing horde of people who believe they shouldn’t have to pay for content. Their position is truly unenviable, but not hopeless. Content producers do have one valuable resource already: the notice and takedown provisions of the Digital Millennium Copyright Act (DMCA). The provision places the onus on the property owner to “fence-out” trespassers, and gives “unintentional” facilitators/distributors a safe harbor for respecting the rights of owners and removing the offending material. In fact, according to a report submitted by Google in 2009, 37% of the takedown requests it had received to that point were not valid copyright claims, suggesting that if anything, the DMCA allows for potential over-enforcement.

So the critical question underlying this fight is: Why would content providers reach so far in light of their rights under the DMCA? There is likely no one grand unifying answer, but the beginnings can be traced back to at least 2007, when a group of content providers including Viacom, BET, CMT, and Paramount Pictures, sued Google over a little website the latter had just purchased that allowed users to upload their own videos for mass dissemination. In our next post, we review the momentous decision in Viacom v. Youtube, and explain the connection to SOPA. Later, we will explore whether these two sides can ever come to an agreement, and whether consumers and society actually benefit from these two sides being “mortal” enemies on this issue. Next up: Déjà vu all over again.

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One thought on ““In the Blue Corner, Our Challenger…”

  1. Pingback: “Sharing the Sandbox” | Stein McEwen Blawg

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