SOPA and PIPA Stalled, Now Comes the OPEN Act

By: Angus Gillespie

As was well documented in the media and seen first-hand by those who’ve come to rely upon it—perhaps more so than they’d care to admit—Wikipedia followed through on its threat to shut down its English-language version of the online encyclopedia for 24 hours on January 18 as part of a blackout protest against the Stop Online Piracy Act (SOPA), which has recently been a hotly debated issue in Washington.

Wikipedia co-founder Jimmy Wales sent out the following tweet in advance of his site’s shutdown.

“Student warning, do your homework early, Wikipedia protesting bad law on Wednesday!” (referring to the January 18 blackout day). Frustration also boiled over for Australian media tycoon Rupert Murdoch, who has taken to his Twitter account to condemn the White House for its stance on the matter.

Protesters against the bill termed it “SOPA Blackout Day” and while there was strong encouragement to have others follow suit with Wikipedia and shut down their sites for a 24-hour period, few of notable significance actually did, although it’s estimated anywhere from 5,000 to 8,000 smaller sites joined in on the action nationwide. A large number of new media companies are adamantly against the implementation of government regulation in this regard, including Twitter; however, its CEO Dick Costolo openly chastised the move by Wikipedia, questioning the logic.

“That’s just silly,” Costolo, 48, wrote on his feed. “Closing a global business in reaction to single-issue national politics is foolish.” Google, the world’s largest search engine, showed its support by modifying its homepage and also released a statement indicating it has received more than 7 million signatures from people who have vowed to boycott any American companies that support the legislation.

Millions of Americans may not yet know what SOPA means, but it or any similar legislation to follow has the potential to leave a huge impact on most everyone’s lives—for better or worse—depending on one’s point of view regarding personal and/or professional interests when it comes to copyrighted material and its current widespread availability on the Internet.

Simply put, SOPA and PIPA are supported by firms that produce copyright material, such as publishers and motion picture film studios, and are opposed by new media technology powerhouses such as Google, Facebook, Twitter and Wikipedia, who rely upon their online users being able to freely access and share information. Where the lines have become blurred—if not crossed altogether—is with respect to ownership rights with which the original creator should reasonably expect to retain, and how adversely the creator will be affected when such unique, independent intellectual property suddenly becomes a free-for-all on the open market for anyone and everyone to acquire either cheaply or for nothing at all. There has been a growing concern that the creators of such unique material are not being properly compensated for their original time, effort and costs involved. Both sides have amassed a number of lobbyists to make their cases in the nation’s capital. While this contentious topic has been on Washington’s radar screen for a number of years now, the huge problem has largely been dodged, but it appears as if real action is on the horizon with this thorny issue clearly not ever going to just go away.

SOPA is a bill originally introduced by Texas Republican Lamar Smith in the U.S. House of Representatives. In a nutshell, he’s looking to create a law that would give American authorities the power to fight online piracy and what he calls the outright theft of copyrighted property. Whether you are for or against the bill, if it becomes law, the ramifications will run deep and wide. To ensure such a law is upheld, provisions would be implemented with the procurement of court orders to stop advertising networks and authorized payment venues from conducting business with non-compliant websites and linking to them. It would also prohibit search engines such as Google from being allowed to direct surfers on the Web towards finding any sites that are deemed to be non-compliant; they wouldn’t be permitted to show up in search results.

This has been such an inflammatory topic that the House of Representatives opted to shelve further discussion of the legislation at the time of our publication. It stands to reason that if the legislation were eventually to be passed into law, it would forever change the way communication and file sharing information could and would be acquired. Besides Google and Facebook, a number of other powerful Internet firms such as Twitter, eBay, Yahoo!, LinkedIn, PayPal and The Huffington Post have also staunchly opposed the tentative legal modifications.

For his part, Smith has acknowledged that further tweaks are needed to his proposal before it can move to the next level.

“I have heard from the critics and I take seriously their concerns regarding proposed legislation

to address the problem of online piracy,” Smith says. “We need to revisit the approach on how best to address the problem of foreign thieves that steal and sell American inventions and products. The problem of online piracy is too big to ignore. American intellectual property industries provide 19 million high-paying jobs and account for more than 60 per cent of U.S. exports. The theft of America’s intellectual property costs the U.S. economy more than $100 billion annually and results in the loss of thousands of American jobs. Congress cannot stand by and do nothing while American innovators and job creators are under attack.

The online theft of American intellectual property is no different than the theft of products from a store. It is illegal and the law should be enforced both in the store and online.”

OPEN Act

However, no sooner had the SOPA and PIPA stalled when new legislation was brought forth to combat online piracy with Rep. Darrell Issa of California introducing H.R. 3782, the Online Protection and Enforcement of Digital Trade Act. Furthermore, Democratic Senator Ron Wyden of Oregon has introduced the OPEN Act in the U.S. Senate. OPEN would provide oversight to the International Trade Commission (ITC) instead of the U.S. Justice Department, and enforcement would apply only to websites that “willfully” promote copyright violation. While still taking direct aim at copyright violations, this is a tamer approach and isn’t likely to be so confrontational as the two rival factions posture for position.

Until late last month, the House of Representatives had been debating what measures–if any–should be taken in terms of the SOPA anti-piracy bill and the PROTECTIP (PIPA) Act before the Senate, which takes direct aim at stopping online piracy by what has been termed “foreign rogue websites” that are most often hosted on computer servers outside the legal jurisdiction of the United States government. Currently, these sites can provide pirated material such as unlicensed film streams and there’s nothing the American authorities can do.

It’s a different age we now live in. Companies that rely heavily on new media are against the proposed bill, saying freedom of speech will be muted if such Internet censorship is implemented. Some of the measures being discussed include Internet Service Providers (ISPs) blocking access to users looking to obtain access to blacklisted international websites. Sites accused of wrongdoing would have five days to appeal before being put on the blacklist. Reports indicate the new law would also give the attorney general the power to change DNS entries, which would in effect block end users from accessing sites found guilty of copyright infringement policy.

For its part, the federal judiciary committee and its chairman Lamar Smith have publicly identified at least 120 companies and groups as formal supporters of the planned legislation. While that number may not seem overly high, it includes some of the largest and most influential corporate forces in the world, such as: ABC, CBS, Comcast/NBC Universal, Disney Publishing Worldwide, International Brotherhood of Teamsters, Major League Baseball (MLB), Motion Picture Association of America, National Football League (NFL), National Songwriters Association, News Corp., Council of Better Business Bureaus, International Trademark Association, Random House, Sony Music Entertainment, United States Chamber of Commerce, Ultimate Fighting Championship (UFC), Viacom, Visa Inc., Walmart and Warner Music Group.

Prior to the days of the Internet first making its way to the general public in 1994, albeit primarily via those brutally slow (and noisy) 19.2 modems, there was no way for a vast majority of the current contentious issues to have unfolded because there was no high-tech communications hardware, nor the bandwidth, to drive the data information out to the masses. In the past for example, if an individual wanted to own a song or a movie, they’d have to go to a retail outlet store and either rent it or purchase it. That’s not been the case for quite some time now thanks to much larger computer storage capacity and high-speed Internet connectivity.

Millions of people are involved in file-sharing sites whereby virtually everything can be found online via broadband connection–and almost always downloaded for free, assuming you know where to look. Advocates for the traditional way of thinking say that this amounts to stealing, pure and simple via the distribution of content such as music, videos, movies, books and software. Sites that garner huge amounts of user traffic then go out and procure advertising, which can be extremely lucrative.

The people who create and produce the original property and those tasked with selling and distributing the products feel they’ve had their legs cut out from under them. They do the legwork in setting up funding and developing the intellectual property, but others end up sharing in the success, having contributed nothing in the process. And so, the intense battle rages on.

While it’s great that we can all intermingle with one another instantaneously around the world and have the technical capabilities of sharing an unlimited wealth of information and products thanks to the Internet, it’s hard to get past the undeniable fact that some of these original creators and property owners are being ripped off to varying degrees. Finding an amicable solution (i.e. proper monetary compensation) has been, and continues to be, the elephant in the room.

The anti-SOPA crusaders are convinced that due process would effectively be ignored with the final result proceeding straight to “guilty until proven innocent.”

They also believe the potential for abuse by the authorities threatens to derail competition and suppress freedom of speech. However, it’s plain to see how difficult it is for many others to find a correlation between something such as the illegal downloading of valued material and it being an infringement of others’ free speech. It seems we now have vastly different opinions and expectations when it comes to entitlement. If ever there was a muddled case of trying to compare apples to oranges, this could be the poster child for it.

Both sides have spent millions of dollars in this epic battle, and it’s far from over.

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