SOPA (Warning: Not Delicious Mexican Soup)

Better sopas at Humphry Slocombe's

SF: So I’ve spent the better part of Saturday night reading H.R. 3261, better known as the Stop Online Piracy Act  or “SOPA”. I’m a man that isn’t afraid to party. In fairness, I read it with my pants off (too hot under the snuggie), so that should count for something on the wild times scale.

Much ink has been sacrificed at the altar of SOPA, so we figured it was an ideal time to add to the pile. Our goal is to distill the legalese down into a basic assessment of the bill and how it might impact the video game industry. My intention is to be as muckraking and sensationalist as possible.

Question: What is your general impression of SOPA?

SF: As an initial matter, I don’t trust acronyms as a species of word. They’re just a way to cover up MALICIOUS longform behind a cuddly shorthand. I delight in a fine sopa, but I find SOPA rather unappetizing.

JM: The acronym reminds me of the USA PATRIOT Act. Except this time, they’re trying to frighten us with something that doesn’t matter to most people, namely the IP rights of corporations.

SOPA presents as an attempt by big IP to restrain the broadcast of their own IP and drive consumers back to traditional revenue points, instead of adapting to how modern customers want to enjoy their IP. It’s the wrong approach. Channeling my Republican friends, market forces should solve piracy, not big, collaterally damaging government intervention.

SF: You have republican friends?

JM: Yes, they’re the ones who show up on time.

Question: So what does SOPA even do?

SF: The goal of SOPA is to provide the government and copyright holders with additional tools for fighting online piracy. Current tools are a sniper shot, SOPA creates a NUCLEAR OPTION. During my Civilization III days I signed various nuclear non-proliferation pacts, so I’m alarmed by aspects of the bill.

The more serious answer is that SOPA provides an expedited path for the government and private rights holders to shut down a site (this is imprecise, but close enough), cut off the site from revenue streams, and effectively erase the site’s footprint on the broader web.

JM: And there’s little to nothing you can do about it when served, you have to take it down. If all someone has to do is claim a copyright violation to have something brought down, this not only signals IP trolls to warm up Photoshop, but in theory, this is a foot in the door to shut down any speech.

Question: So who cares about SOPA, and why should I care?

SF: A strong contingent of content creators support SOPA, mostly because they’re tired of seeing 95% of the users of their product not paying for it. Their concerns are real, but many folks don’t find them a particularly sympathetic group.

Web sites that aggregate content, payment processors, search engines, and advertisers hate SOPA with the fury of a thousand suns. They hate it because they’re going to get PWN3D with costs and additional liability. That makes them sad.

Consumers are largely confused but certain hardened constituencies (gamers, techies, etc.) are pretty strongly against it. Even if they aren’t prone to pirate content, they’re generally suspicious of any legislation aimed to “protect them” from content.

JM: To elaborate on Shawn’s first point, the major entertainment industry lobbying groups are backing it, the MPAA (movies), the RIAA (music), and the ESA (games). But in the case of the ESA, members including Epic Games have come out against it, preferring a piracy solution “that’s compatible with freedom of speech and due process of law,” as Epic’s Dana Cowley put it in a forum post. This inconsistency in the wall is telling, as it demonstrates that even those who stand the most to gain from SOPA know in their bones that there’s something fundamentally wrong with it.

Question: I don’t really see why that’s a problem. Porn will still be free, right?

SF: Whenever people freak out about the idea of a loose nuclear weapon, the angst always boils down to two issues: who is going to be targeted, and how much damage is going to be done. Analogizing this to SOPA gets sticky, so I’m gonna use bullet points.

  • Targeting: So the guidance systems on SOPA are fukt (that’s a legal term). I’m not gonna muck into the language too much, but if you want to see a good analysis, go here. The issue is that the language does not require a sufficiently suspect participation by the site owner before the nuke gets launched. For example, you might have a site laden with user generated content, some of which may be a violation of copyright. The mere presence of the content creates the potential for disaster. That’s probably not the intent of the legislation, but they used a lot of elastic terms that I would have a field day with were I still a litigator. Specificity is key when it comes to nukes, small errors make big problems.
  • Damage: Even minor infringements can trigger the eradication protocol. The failure to react in the appropriate time period, 5 days in this case, can result in your payment mechanisms being cut off, your advertising being yanked and your general web presence vaporized. There’s a reason we don’t toss nukes around like candy: they’re a weapon with vast and fatal consequences. Given the targeting issues, the power of the weapon is somewhat concerning.
  • Collateral Damage: This is the nuclear radiation cloud, floating along the airstreams to the unsuspecting neighbors. SOPA permits the complainant to go after the third party payment processors and advertisers who fund the site. This creates an enormous enforcement obligation on the part of these third parties. The administrative and execution costs associated with this are terrifying to consider. Just think of being required to turn off thousands of accounts within very short time windows or risk being exposed to significant liability. I weep for the children.
  • Porn might not be free any more: I don’t know if that’s true, but it could be. Particularly if the aggregators are foreign domains.

JM: As Shawn points out, you can’t just look at the intention of a law, but it’s practical nuclear effects. Today, without SOPA, NBC Universal can reach down and tell YouTube to kill a clip of Jay Leno giving Michelle Bachman some tough questions. Already, the balance of interests between individual public expression and IP rights swings in the wrong direction. Giving Big IP the nuclear football not only damages individual websites, payment providers, and advertisers, it harms the Internet audience at large.

Question: Gadzukes! Is there any other reason for concern?

SF: I see dark times ahead. The lawyer side of my brain already knows what the natural outcome of the combination of mushy language, no case law, and high exposure are: ABORT MISSION. My expectation is that a broad cross-section of perfectly permissible behavior would be eliminated because of the fear of liability.

Even if there is only a 1% risk of a particular action being objectionable and actionable, if the outcome of that contingency coming to pass is the eradication of your site, you simply don’t engage in the behavior. The web thrives on the constant growth, reformulation and mutation of pre-existing content. I would hate to see this creativity stymied because we gave the launch codes away.

On the whole, I rate this legislation: :(

JM: At a meta-level, the Internet is becoming a truly democratizing and mobilizing force, but SOPA is adopting a Middle Eastern dictatorship approach to offensive expressions. The interests of organic persons in self-expression, that are at risk here, must trump the IP rights of corporate persons. And frankly, are these IP rights really an important social good that we should be so eager to protect?

So yes, the bigger reason for concern is not SOPA itself. I don’t even think SOPA will pass at this point. But the thing that is in clear view through this episode is just how powerful big IP really is. How bought and paid for our representative government really is. And how we, individual, Internet-enabled people, actually have the ability to speak, be heard, and push back.

SF: Hey Jamil, you mad bro?

JM: I love America.


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