As controversial anti-piracy legislation lost key supporters amid online protests Wednesday, some experts said the best course of action for major media companies may be to befriend the very firms they're fighting.
The issue of how to eliminate piracy on the web has had Silicon Valley and Hollywood at each other's throats for more than a decade. Two bills under consideration in the House and Senate, the Stop Online Piracy Act, or SOPA, and Protect IP Act, or PIPA, respectively, have flared tensions between the two industries. Content creators want to see websites play a larger role in policing copyright infringements, which they claim cost them billions in revenue each year, while members of the tech industry counter that the proposed bills would stifle innovation, undermine the very architecture of the web, and limit free speech online. A few months ago, SOPA and PIPA looked to be a done deal. But support for the proposed legislation has eroded in the wake of vocal and far-reaching opposition from Internet firms, free speech advocates and netizens. That erosion of support continued Wednesday as Sens. Marco Rubio (R-Fla.), John Cornyn (R-Texas) and Orrin Hatch (R-Utah) joined a growing list of senators who said they would no longer support the legislation.
With passage of the two bills in doubt, some experts said the next phase in the battle to curb Internet piracy should involve partnerships -- not legislation -- that strike a balance between the two competing interests.
Legal experts suggested that content creators should seek out new revenue streams that take advantage of the web's diverse distribution platforms, rather than attempting to limit the exchange of content online.
"The ones who figure out that they're ready to team up and think outside the old paradigms are the ones that are going to make it," said Tarleton Gillespie, an associate professor of communication at Cornell University.
Jonathan Askin, a law professor at Brooklyn Law School, noted that studios now have the option, more than ever before, to establish direct relationships with their viewers and no longer rely solely on cable companies and other gatekeepers to distribute their content. He added that most people are willing to pay for media that is easily accessible, and that making more music, TV shows and movies readily available online, even at a cost, could help curb piracy.
"Consumers use the Internet to get access directly to content. They don't necessarily need the cable network or newspaper to do it," Askin said. "Can't 'American Idol' go directly to the people? The only reason they can't is because you have the cable and broadband industry that has corralled the world into thinking you need to be part of their system to get 'American Idol.'" David Touve, a business professor at Washington and Lee University, said other options would involve offering copyrighted material on websites where consumers spend most of their time and embedding licensed content in search results or social media platforms such as Facebook. Touve added that offering convenient access to licensed media would make acquiring the pirated version "more of a hassle than the effort is worth." At the same time, however, a third bill under consideration, the Online Protection and Enforcement of Digital Trade Act, or OPEN, might offer lawmakers another shot at brokering a peace between Hollywood and Silicon Valley. Whereas SOPA allows rightsholders to take action against suspected copyright violators without a third party first vetting their assertions, the OPEN Act would require copyright holders to petition the International Trade Commission -- a federal agency that arbiters patent disputes, among other issues -- to investigate the content creators suspected of piracy. If the agency determines that the site has run afoul of the law, rightsholders can ensure that payment processors cut off funds to the site and that the site gets shut down, among other consequences.
While some critics of SOPA view the OPEN Act as a more reasonable solution, major media companies have criticized the legislation. The bill "fails to provide an effective way to target foreign rogue websites and goes easy on online piracy and counterfeiting," Michael O'Leary, Motion Picture Association of America senior executive vice president, said in a blog post.
Given the entrenched attitudes of stakeholders on both sides of the matter, the only sure outcome is that conflict over copyright will continue. Yochai Benkler, co-director of the Berkman Center for Internet and Society at Harvard University, said the clash between Hollywood and Silicon Valley stems from a fundamental disagreement between the two parties over the nature of the Internet: whether it is purely a means of distributing content, or a platform for individual expression. "The industry sees [the web] as a content delivery network -- as basically a more sophisticated broadcast or DVD distribution channel that allows for finer grained control over pricing and delivery and consumer satisfaction. All the rest is peripheral," Benkler said.
Even if SOPA's proponents manage to keep the anti-piracy legislation afloat despite its dwindling support, Benkler warned their staunch stance may have produced a new opponent: the powerful, diverse online coalition of bloggers, advocates, companies and nonprofits that know how to use the web to their advantage. This group may not only fight to maintain the status quo, but, in time, even go so far as to seek more liberal copyright legislation. "There's no reason for a coalition as big and diverse as the one that's grown up in opposition to SOPA to give in," Bankler said. "The big question is whether the next step for the coalition that's discovered itself will be to turn around and push through legislation that will lift constraints on fair use that were introduced in 1998."