The Stop Online Piracy Act (SOPA) and it’s Senate companion bill the Protect Intellectual Property Act (PIPA) are all over the news today (and have been for a few weeks). I have been thinking about this issue for several weeks and have yet to come out publicly to talk about it on the Law Blog, but today is a good day.
First off, there are a lot of sites where you can get educated about the two bills – the basic issue is that the bills would give content creators online protections against the unauthorized use of their creations. In the abstract, my support for artists and creative types would have me backing this bill. Why shouldn’t an artist who has spent their time and intellectual resources on developing a work of art, be rewarded for that work of art, either by being able to sell it to people who want it, or at least being able to exercise some control over who should have access to viewing it? I like protecting people who make things. In general, creation is the greatest accomplishment of humanity.
On the other hand, this is not the bill to provide the protection that we seek for those who create things. The “content creators” who would ostensibly be protected by this bill are not necessarily the ones that I am most interested in protecting. SOPA/PIPA will shift the balance of power over internet content to corporate interests who have bought the rights to particular content rather than protecting the painter or writer engaged in the solitary act of creation that we prize so highly.
What has been extraordinary about the internet is the degree to which it democratizes the spread of ideas. Good ideas given the right audience spread across the internet in an instant while bad ideas whither and die; it doesn’t matter whether they are backed by corporate interests or not. So, there has always been a strong argument, for example, that P2P music sharing actually drives sales for bands that might otherwise not have had access to particular markets because they didn’t have corporate distribution channels available to them. The same might be true of independent film makers, painters, sculptors, and especially writers. On the other hand, there has always been a worry that there is the potential for unauthorized distribution of copyrighted materials – why buy it when you can download it for free? No one ever said – us included – that we want protected data to be given away for free instead of purchased. But what should enforcement regimes look like and who will have access to them?
The law would give sweeping enforcement provisions to corporations by corporations backing their interests with strict legal enforcement mechanisms with very little due process of law involved. Because of the speed (or distinct lack thereof) of the legal system having Visa cut off your merchant account is a much more swift and draconian punishment than an administrative action taken by the Federal government. Visa could take action in 5 days (might be required to take action).
There definitely need to be protections for artists online to ensure that those who engage the act of creation are protected against the pilfering of their ideas. Due process requires that there be a balance between protecting creative property as quickly as possible while ensuring that everyone has access to the great (and not so great) creations in the digital world. Whatever online piracy prevention act that eventually passes (and one eventually will) should take into account what the internet is and has become – an amazing space where peers from all over the world can share their creations with their peers all over the world. In the great marketplace of ideas, the strong and beautiful survive, we find people with tastes like ours, and have the opportunity to grow as people when we are challenged with innovations and ideas we had never dreamed possible. This is an instance where legislation should be the least invasive possible with the greatest amount of freedom, while still giving the artists and creators their due. A good bill will provide limited protections for artists and creators while giving a great deal of freedom to those who help their ideas spread. SOPA/PIPA is not it.