SOPA's Dead, What Now?

There are potential alternatives to the draconian SOPA and PIPA, ones that protect intellectual property rights while also protecting the vitality of the Internet and the rights of its users.
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It almost feels like a waste at this point to spend too much time talking about the controversial Stop Online Piracy Act, at least in its present incarnation, only because it's pretty much dead in the water -- as is its counterpart, the Protect Intellectual Property Act. An astonishing display of power last week by what seemed like the entire Internet has rendered the whole proposition radioactive, with members of Congress who were all gung-ho about the measures just a few days earlier quietly backing away from them, the White House giving it a thumbs-down and, as of today, the Senate announcing that it's canceling a vote on PIPA and will completely redraft SOPA. Depending on which side of the fence you're on, this is either a huge victory for online freedom or a knee-jerk reaction by lawmakers cowering in the darkness of an unprecedented digital blackout, but the fact is that it was necessary -- because both measures amounted to a distressing overreach by both the government and the media companies trying to protect their product.

The big question, though, is -- now what? True, the solutions proposed by the House and Senate were all about trying to kill a cancer with a nuclear warhead, but there's still that very serious malignancy to consider and something has to be done to help put a stop it.

Opponents of SOPA and PIPA maintain that consolidating too much power in the hands of the feds and the media organizations -- certainly the power to arbitrarily remove a foreign website from view and access by Americans -- may eventually lead to tyranny in the form of average people seeing their blogs and Tumblr accounts cut off because of minor copyright infractions and sites like YouTube and Facebook forced to police submissions for fear of drawing the digital death penalty. That's definitely a worst-case-scenario, albeit an unlikely one. For the most part the law would be aimed solely at combating overseas pirates who operate beyond the reach of the U.S. legal system. But that doesn't mean there isn't the potential for collateral damage or even the ultimate abuse of that level of authority. Letting the government censor sites it and those who hold certain copyrights find objectionable sounds just a little too much like the kind of thing that's allowed to go on in China, and that should concern everyone.

As an entertainment attorney, one of my specialties is intellectual property law and as such I'm a firm believer that there should be systems in place to help those who create content protect that content like it was any other form of their property. The survival of all media and the American entertainment industry depends on guarding intellectual property rights in much the same way that a lack of overt censorship is absolutely necessary to guarantee that the Internet remains the most vital marketplace of ideas our culture has ever seen. I stand with the artists and organizations responsible for developing and nurturing television, motion pictures, music, art and so forth; their rights must be guaranteed and defended and they need to be assured that they'll be able to make a living from their hard work. Swiping someone else's copyrighted material, especially with the goal of making a profit on it yourself, is stealing -- simple as that. And there are very real victims of this kind of theft as well as a bigger picture argument to be made about how piracy affects everyone by slowly chipping away at the creative institutions that put all that great content out to the masses in the first place. For an example of this, you need look no further than the damage done to the recording industry by online theft.

So what's the answer? Besides the Digital Millennium Copyright Act of 1998 -- which works well in theory but, since limited domestically, in practice barely puts a dent in online piracy -- what can be done to thwart the outright stealing of intellectual property in the Internet age? Well, this is where those online titans who flexed their muscle so successfully a few days ago could really help out. The problem is obvious but the solution may not be something any aging lawmaker or old-school media organization can come up with. It requires people who understand the Internet inside and out -- who get its quirks and who engage in the non-linear thinking that makes it thrive -- and who's more qualified than, say, a Google or a Wikipedia to "sit down" with the artists, media companies, content providers and law enforcement and come to a compromise that works for everyone. In fact, Google is already backing a counter-measure being sponsored by Republican Representative Darrell Issa and Democratic Senator Ron Wyden; it would bring the fight against online piracy under the purview of the International Trade Commission rather than the Justice Department, where it is now. Does it deserve scrutiny, the same scrutiny given to the two measures now very likely consigned to the scrap-heap? Of course. But its very existence shows that there are potential alternatives to the draconian SOPA and PIPA, ones that protect intellectual property rights while also protecting the vitality of the Internet and the rights of its users.

Those two bills were bad ideas, but they addressed a very real problem that's still out there. So somebody's going to have to come up with a new and better idea to solve it.

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