The Good, the Bad and the SOPA

While reviewing the evolution of copyright and intellectual property, one can view how most laws on copyright have been heavily influenced by big publishing companies.  The current big publishing companies pushing for a new bill to be passed called the Stop Online Piracy Act are the Recording Industry Association of America and the Motion Picture Association of America.  While the premise of the bill is to shut down foreign rogue websites hosting copyright infringing materials owned by the Recording Industry Association of America and the Motion Picture Association of America, the bill is too broad in definition and there could be innocent bystanders that get caught in their line of fire.  This paper will discuss the topic of intellectual property in the digital age and how the creativity of intellectual property is being censored and threatened by the Stop Online Piracy Act (SOPA).

Intellectual property could be defined as ideas.  Patents, trademarks, trade secrets and copyrights are all included within the category of intellectual property.  Trade secrets are ‘inventions, plans or other valuable information,” trademarks “serve to identify the source of goods and services,” of a company and “a patent is a government issued document that describes a new and useful invention,” (Anawalt, 2011, p. 4-6).  Intellectual property is much more than “an issue of law, ethics, politics, or economics…; it is also an issue of culture.  Shifts in cultural models affect the way we think about ownership, sharing, stealing, consumerism, ethics, and responsibility,” (Sano-Franchini, 2010, p. 202).  The Internet has changed how culture shares information entirely.

So what is copyright?  “Copyright battles reflect the mutually exclusive desires to maintain authority and control, and the necessity to relax control to facilitate circulation,” (Halbert, 1999, p. 1).  Copyright is about control.  The author maintains control over their own work while they are in the creating process.  Plagiarists and pirates are the ones who are waiting to steal ideas from authors before their work is published.  Pirates will sell or make available illegal copies and they have no respect for author’s rights.

Copyright has been an issue since the 18th Century in England.  It is important to note that “copyright and authorship go hand in hand,” (Halbert, 1999, p. 2).  Copyright was created and enforced for so many years to protect the work(s) of an author.  With the invention of the printing press in “1476,” (Halbert, 1999, p. 2), works were easier to reproduce than the method of handwriting a copy.  Printing new copies also reduced the number of errors that occurred with handwriting.  In England, with the Copyright Act of 1709, all “printed matter was controlled via the Licensing Act, which allowed authorities to prohibit publication of anything dangerous,” (Halbert, 1999, p. 4).  These “dangerous” items could then be censored since it was the “Stationer’s Company right to copy rather than the author’s right to own,” (Halbert, 1999, p.4).  Even when copyrights first emerged into society, authors didn’t necessarily own their work(s).  The Stationer’ Company was a publishing house in which authors sold their books to – the key word here being sold.  Authors were ultimately giving up their rights to have the book published.  The Stationer’ Company owned the copyrights and “books written by individuals who had died hundreds of years ago were still bought and sold,” (Halbert, 1999, p. 5).  There were no limitations on what they could copyright and for how long.

When the Statute of Queen Anne was enacted in 1709 it “reduced the copyright term to 14 years, with a possible renewal for another 14 available to the author,” (Halbert, 1999, p. 5).  The Statute was not intended as a copyright protection act, but as a trade – regulation act.  These rights became effective to everyone and any work they create, while warding off any monopolies from the publishers like the Stationer’s Company.

Then, with the cases of Millar v. Taylor and Donaldson v. Beckett in 1769 and 1774, respectively, “succeeded in fixing the idea of copyright as an author’s right,” (Halbert, 1999, p. 6).  Millar bought “the rights to James Thompson’s poem ‘The Seasons,” (Lessig, 2005, p. 91) and Taylor printed copies without permission, resulting in being sued by Millar over common law and rights given by the Statute of Queen Anne – Millar won.  Then “Millar died soon after his victory…his estate sold Thomson’s poems to a syndicate of printers that included Thomas Beckett,” (Lessig, 2005, p.92).  Soon after Donaldson “released an unauthorized edition,” (Lessig, 2005, p.92) of Thompson’s poems and Beckett took him to court because he had the copyrights which he bought in Millar’s estate.  Even though the poems were out of a protection of copyright and would’ve passed into the public domain there wasn’t a concept of that until the Donaldson v. Beckett case emerged in 1774.  “After 1774, the public domain was born.  For the first time in Anglo-American history, the legal control over creative works expired and the greatest works in English history—including those of Shakespeare, Bacon, Milton, Johnson, and Bunyan—were free of legal restraint,” (Lessig, 2005, p.93).  The public domain was born because, after a twenty-eight year period, there was agreement that the ideas created should be common knowledge.

Fast forward to 1790, in America, when the first federal Copyright Act passed on May 31 – this act protected “printed work from piracy and protected maps, books, and charts for a 14-year term,” (Halbert, 1999, p. 13).  This Act also allowed for a 14-year renewal for living authors which greatly resembled the Statute of Queen Anne.  Since then, copyright was “extended eleven times in the past fifty years,” (Lessig, 2002) or more commonly known as the Mickey Mouse Protection Act.  Every time Mickey Mouse was about to fall into the public domain, the length of years that a copyright is subject to was extended.  First Brian Leubitz declared that “the Framers of the Constitution believed copyright to be a protection of individual property rights, not corporate rights,” (2003, p. 430).  The copyrights over Mickey Mouse should be in the hands of Walt Disney alone, not the corporate rights of the Disney Corporation.

Then, in 2010, Evan Brown said that a “creative person will put forth the effort to construct a work and make it available to society through publication in return for the law’s promise to give that person a type of monopoly over the work,” (p. 836).  A person (Walt Disney) should have the monopoly over his creations, not the corporation that he worked for.  There is no reason that Mickey Mouse shouldn’t be in the public domain.  After 1774, England was “free in the sense that the culture and its growth would no longer be controlled by a small group of publishers,” (Lessig, 2005, p. 94).  Lessig’s theory in Free Culture:  How Big Media Uses Technology, according to Stuart Weinstein, is that “the internet and intellectual property law are being used by powerful media forces as a tool for suppressing creativity in the pursuit of pure economic benefit,” (2005, p. 364).  Looking at the Disney Corporation, yes, this is true.  Disney’s characters have yet to fall into the public domain and “no one can do to the Disney Corporation like Walt Disney did to the Brothers Grimm,” (Lessig, 2002).  Walt Disney remixed most of his stories and characters from the Brothers Grimm – their works were already in the public domain – but if anyone tries to parody anything that Walt Disney has created, there are stopped by the law.  The Disney Corporation’s current patents and copyrights exclude all future competition.  The Disney Corporation is a monopoly on creativity.

Now enter into the digital age were “ours is less and less a free society,” (Lessig, 2002).  The society Lessig is referring to is the advancements of technology that has fostered a creativity haven.  The Internet is “the greatest outpouring of creative activity in a short span of time that the world has ever seen,” (Thierer, 2002, p. 115) because the rate of growth of the creative society online is exponential compared to the physical creative societal growth.  The laws can’t catch up to the pace of the continually expanding realm of the digital age.

An alternative to the copyright laws set by the U.S. government is Creative Commons which is a non-profit organization started by Lawrence Lessig in 2001.  The goal of Creative Commons is to create reasonable copyright rules over the rigid base model that is currently in place.  It “provides free copyright licenses to enable artists to make their creative work with the freedoms they want it to carry,” (Lessig, 2008, p. 15).  Basically, Creative Commons is for people who want to publish their works in an open manner.  These authors want people to build upon their ideas to create something new.  These people have a name:  “remixers – those people who borrow the works of others and rearrange them to suit themselves,” (Egenes, 2010, p. 1).  YouTube is a great place for remixers to post their work in the digital age.

The Digital Millennium Copyright Act (DMCA), which went into effect in 1998, allowed “copyright law to deal with the new technologies,” (Bielefield, 2007, p.31).  The DMCA is there to protect copyrighted materials by banning any program that can digitally create copies.  The most important clause within the DMCA is the safe harbor clause.  This clause protects an Internet Service Provider (ISP) from liability as long as they comply with the law.  For example, if a YouTube user posts copyright infringing material and the copyright holder sues YouTube for hosting the infringing material, then, under safe harbor, YouTube can contact the user to remove the infringing material or remove it themselves and avoid the lawsuit.  Under the DMCA, ISP’s are protected when their users are posting copyrighted content as long as they remove the infringing material when asked.  With YouTube’s policy “all that is required is that users be put on notice that repeat infringements will lead to termination of access from all services,” (Breen, 2007, p. 16), but, if the account is terminated, there is nothing to stop the user from setting up a new account.  This addresses a real problem with the Internet – extensive anonymity – but that could be a whole other research paper and cannot be covered in this page length.

“The law regulates ‘reproductions’ or ‘copies’.  But every time you use a creative work in a digital context, the technology is making a copy,” (Lessig, 2008, p.98).  How is remixing legal?  This is where fair use comes into play.  The principle of fair use is “that the public is entitled, without having to ask permission, to use copyrighted works in ways that do not unduly interfere with the copyright owner’s market for a work,” (Von Lohmann, 2010, p. 9).  Fair use includes personal uses such as recording a movie or television show on your VCR or DVR.  Quoting an author in a paper also falls under fair use.  These remixers are on the edge of fair use which sometimes results into legal battles over their remixed creations even though the new product is not an exact copy.

When a user makes an exact copy of an author’s work and distributes them freely to friends or sells the copies for monetary value, then those do not exercise fair use, but “no one would suggest that copyright holders do not have every right to protect their interests in their works against unauthorized and illegal copying and distribution,” (Lipton, 2005, p. 280).  The people who sell or make available illegal copies of author’s works are known as pirates.  Pirates, in short, stop the original authors from their right to a monetary gain from their creations.  The U.S. government believes that “piracy and counterfeiting online damage our economy,” (Library of Congress, 2010, p. 269).  Yes, movie counterfeiting affects the Motion Picture Association of America’s monetary gain.  Yes, the piracy of music affects the Recording Industry Association of America (RIAA)’s monetary gain.  Adam Thierer thinks that the DMCA is there “to give these media megaliths even more powerful tools for consolidation,” (2002, p. 37) – the ‘megaliths’ referring to the “five largest institutions [that] now control most of the world’s entertainment and much of its scientific and technical intellectual property,” (2002, p. 37).  This means that the entertainment is a monopoly across the world and these ever changing laws for creative property and intellectual property and only sought being changed because it would benefit these said companies, including the RIAA, MPAA and the Disney Corporation.

The pirates in the 18th century “were guilty of printing books,” (Halbert, 1999, p. 6), but are now hosting a library of music on their personal computers for other people, worldwide, to freely download this music via a peer to peer (P2P) filesharing network.  “Napster, which was the first popular peer-to-peer filesharing program that allowed vast numbers of users to easily share copyrighted music, videos, and computer programs, caused a subconscious shift in peoples’ understandings of copyright, usage, and ownership:  it was no longer clear what was considered ‘appropriate’ use of intellectual property and copyright-protected works,” (Sano-Franchini, 2010, p. 204).  While Napster was a clear violation of copyrights from the RIAA, the remixers are not.  Remixers are only sampling music tracks and therefore are not pirates.

Take YouTube, for example, “in its infancy, legally posted content was predominately comprised of user-created content,” (Breen, 2007, p. 153).  YouTube is a newer technology and could not flourish as it has without being protected by the safe harbor clause of the DMCA.  Now, there are videos on YouTube that remix clips of various sources: user-generated content, television shows and movies as well as images.  Television, movie clips and stills (or pictures from movies) are where the MPAA gets involved with remixers.  These remixes may also include music clips which involve the RIAA.  The record labels that are a part of the RIAA own the distribution and ownership of the music and the remixers posting on YouTube are threatening their power.  “Because of the massive amounts of financial and political capital backing major record labels, record labels can influence politicians and government agencies (and therefore copyright laws) to their benefit; however, this approach is negligent of the target customer’s changing cultural needs,” (Sano-Franchini, 2010, p. 205).  Changing cultural needs – society’s views are changing because of the Internet and the way society can share quickly and easily in minimal time with minimal effort.

The digital age is “about intellectual and artistic creations within a communal culture, (Egenes, 2010, p. 2) and this is what Sano-Franchini was referring to about the changing cultural needs.  YouTube is a communal culture because users create profiles, can interact with other users, and can build upon other ideas or content.  Any social media is a communal culture.  Even open-source software like Mozilla, for example, is a communal culture.  Mozilla’s most popular products include a web browser, Firefox, and an email client, Thunderbird.  Mozilla is a global community working together to make the Internet better.  They “believe that the Internet should be open, public and accessible to everyone without any restrictions,” (Mozilla).  Any content on Mozilla’s website is protected under the Creative Commons copyright license, but that allows any Internet user to take a copy of the Firefox source-code to use it freely, study or change the code and improve on the design of the overall product.  Therefore “copying does not destroy cultural value; it is a cultural value,” (Scafidi, 2005, p. 118).  The changing cultural needs is that our creative society views remixing and interpretations as a cultural value along with sharing their creations (or remixes) freely with other internet users.

Corporations that are part of the RIAA and the MPAA, who rely heavily on copyright protection, believe the Stop Online Piracy Act to be piracy protection.  While companies like Facebook, Tumblr, and Flickr, who rely on user-generated content, argue that the bill would bring about censorship to the Internet.  U.S. law gives “legal protection to creative expression in order to induce creative activity…giving creators an incentive to produce works of authorship by promising them an opportunity to profit from their labors via a property right,” (Thierer, 2002, p. 114).  So what exactly is the SOPA doing?

The SOPA gives the U.S. government and copyright holders the authority to seek court orders against websites that traffic in pirated property and infringing materials.  The owner of the website would be notified of their infringing materials and that a court order is being sought out against them.  “Between June 30, 2010, and February 14, 2011, [U.S. Immigration and Customs Enforcement] seized 112 domain names associated with Internet piracy…however, the sites remain online and accessible through their Internet protocol addresses,” (Library of Congress, 2011, p. 258).  Only domain names that were created in the United States are subject to the U.S. government’s current power to seize.  The SOPA states that a network provider can be ordered by the government to “protect access by its subscribers located within the United States,” (H.R. 3261, 2011).  This means that the U.S. government would have the right to block a domain address of a website that hosts infringing materials.  The ISP, according to section 102 of SOPA, only has five days to remove the infringing materials from the website otherwise the website is flat out blocked from access.  The SOPA will override the DMCA’s safe harbor clause and essentially destroy the Internet as society currently knows it.  SOPA is stopping the incentive to create.

If the SOPA bill is passed  “any site that contains user-generated content, such as Flickr, Etsy or Tumblr, could be found liable for copyright infringement and be forced to shut down until the offending content has been removed,” (Basulto, 2011).  This is in direct violation of free speech.  “Some commentators are concerned that the broad definition of an Internet site dedicated to infringing activity could encompass speech protected by the First Amendment,” (Library of Congress, 2011, p. 260).  There is no reason why a user on Flickr shouldn’t be able to upload pictures from a recent vacation to the website.  If the Flickr domain is removed from the Internet because of users that post infringing materials, then the users posting the infringing materials should be punished, not the domain name of Flickr becoming blocked.

In the long run, with U.S. government interventions, this bill could lead to the censorship of the Internet, even though it’s main focus is to get rid of the pirate sites that are “a drain on entertainment companies whose high-priced products bounce around the Internet for next to nothing, generating revenue for criminals (often based overseas) who sell counterfeit versions online,” (Jerome, 2011).  These are websites like which hosts a library of copyrighted materials available to be illegally downloaded.  It is understandable that pirate websites such as this are the main target in the SOPA bill, but other websites, such as YouTube, would be an innocent bystander.  “Congress should not create roadblocks to technological innovation, the tradition engine of the modern American economy,” (Leubitz, 2003, p. 424) especially when the Internet is one of the fastest growing job opportunities.  There would be less entrepreneurs investing in and creating Internet startup companies.

The bill, if passed, risks “destroying what makes the Internet so special and attractive to innovators and investors alike,” (Basulto, 2011).  There are nine companies who formally rejected this bill on November 15, 2011.  These companies are AOL, eBay, Facebook, Google, LinkedIn, Mozilla, Twitter, Yahoo, and Zynga.  They stated that “if Internet consumption and expenditure were a sector, its contribution to GDP would be greater than energy, agriculture, communication, mining, or utilities,” (AOL, 2011).  All of these companies would not have been possible without the creation of the Internet.  These companies believe that the SOPA will curb innovation and job creation.  Websites, like YouTube, with user-based content could eventually be shut down because of infringing material, but YouTube couldn’t exist without the protection of the DMCA in the first place.  Entrepreneurs may have to spend more money of lawyers and legal fees that they could on hiring new employees and expanding new businesses.  This would be a setback to the current economy.

SOPA would also allow the government’s reach to “extend to search engines, which would be required to remove those websites from its search results,” (Sheridan, 2011).  This is also known as censorship. In 2003, China’s Ministry of Public Security began “The Golden Shield Project,” which was an attempt to put controls over Internet use in place and prevent the sharing of information that could threaten national security, disclose state secrets, or damage the government’s reputation.  This is censorship.  “Eric Schmidt, executive chairman of Google, compared the domain name seizure approach to China’s attempts to stifle free speech,” (Library of Congress, 2011, p. 260).  Here is what happened with Google in China in January 2010:

“Google discovered that Gmail accounts of several Chinese activists had been hacked.  Detecting an attack too sophisticated to be the work of an average web user, Google suspected it to be the work of the Chinese government, publishing an article on its blog.  The U.S. company had previously agreed to censor its search results on China.  However, upon this discovery of piracy, Google decided to uphold its motto ‘Don’t be evil,’ and announced the closure of its Chinese site.  The site was closed in March of 2010, and people wishing to visit Google in China were redirected to a Hong Kong version of the search engine which is uncensored.  The government was capable of blocking the redirection at any time.  Four months later, Google managed to renew its authorization to operate in China by delaying the redirect with a page requesting a click to access  However, authorities can still reverse their decision and numerous Google services, like YouTube and Blogger, continue to be prohibited,”

(Synthesio, 2011, p. 4)

There wouldn’t be acceptance if something like that happened in the United States – there would be immediate backlash from citizens.  It would be one thing if the U.S. government would request certain search term results to be blocked under the SOPA, but blocking the entire website of Google would be extending their reach too far.  Currently, the Stop Online Piracy Act will be going back into the House of Representatives for revisions on December 15, 2011 (Sheridan, 2011).  If enacted as is, SOPA’s blacklists will start to make the United States resemble countries like China with massive government efforts to censor the Internet.  The U.S. government shouldn’t have the power to block website redirection at any time.  If the bill passes through the House of Representatives, only President Obama will have the authority to stop it.


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One thought on “The Good, the Bad and the SOPA

  1. Pingback: DMCA Compliance | Patterns for Woodworking

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