SOPA highlights difficulty of crafting effective Internet IP law

Ever since the Internet came into widespread use by the general public, its relationship with intellectual property (IP)—both as a thing in and of itself, as well as a source of income for those who create it—has been fraught with difficulty. Those who attended college in the late 1990s will remember Napster, the free music download service that revolutionized Internet piracy and incurred the wrath of Metallica front man Lars Ulrich. Napster was shut down by judicial order, only to be succeeded by other, perhaps more cautious downloading services, such as Kazaa, once a Napster look-alike but now a “legitimate” paid subscription service. Likewise, Napster has re-invented itself as a paid service in compliance with copyright law.

The Internet piracy phenomenon has not been confined to music. Harlan Ellison, an award-winning writer who has produced in excess of 1700 short stories, essays, novels, and teleplays, filed suit against a host of defendants, the most recognizable of which was the Internet service provider America Online. Ellison lambasted the idea that fair use could justify the uploading of entire works, and he argued that, taken to an extreme, unfettered Internet piracy would jeopardize the ability of professional artists to derive an income from their work. Ellison’s lawsuit ended in 2004 with a settlement between himself and AOL, with both sides affirming the importance of addressing the spread of copyrighted works online.

Congress has intervened in the past, generally with the intention of enforcing existing copyright protections in electronic media. Its first noteworthy effort took the form of the Digital Millennium Copyright Act, a piece of legislation aimed at the sort of copyright infringement described above. The Ellison case invoked the DMCA, in fact, though AOL was deemed eligible for a “passive conduit” exemption that shielded it from liability. But the DMCA was, and remains, a controversial law, in no small part because of an alleged “chilling effect” on research in computer and information sciences. The law bans the development of technologies that circumvent copy-protection techniques employed by the legitimate owners of intellectual property. As a result, opponents say, even university researchers have been unable to publish academic work related to digital rights management technologies, for fear of prosecution under the DMCA.

The Stop Online Piracy Act (or, as the Senate version is known, the Protect Intellectual Property Act) represents the federal government’s latest attempt to curb Internet piracy. The bills, which are focused on copyright violations by foreign websites, have precipitated an avalanche of criticism. Numerous petitions in opposition to SOPA, including a petition sponsored by Google, have accumulated thousands of signatures. Popular websites featuring user-generated content, such as Wikipedia and Reddit, went dark on January 18 in a day-long protest. Supporters of the two bills, both in Congress and in the private sector, have been deserting the cause in numbers. SOPA has been shelved indefinitely as a consequence, and the Senate’s discussion of PIPA has likewise been postponed.

It will be interesting to see how the SOPA/PIPA controversy shapes future discussion of the balance between protecting IP rights on the one hand, and on the other preserving the freedoms of individual users. By shelving SOPA and PIPA in response to the outpouring of opposition, Congress has in essence admitted that, perhaps, it does not know what it is doing after all. At the same time, companies like Google and Twitter have greatly expanded their lobbying presence in Washington in order to counter the lobbying efforts of groups like the Motion Picture Association of America (MPAA), one of the driving forces behind SOPA.

While Congress has long sought to establish some degree of control over the Internet, the SOPA controversy appears to have exposed its technological naïveté to an unprecedented extent. One can only hope that, whatever form the next attempt at Internet regulation may take, it addresses the complexities of the Internet on their own terms.

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