SOPA and Nolan Chart

HR3261, otherwise known as the “Stop Online Piracy Act” (SOPA) is a bill that is designed, in principle, to protect the creators of online content from unauthorized copying and distribution of their intellectual property.  The bill has bipartisan support in the House and Senate, although the bill’s true authors are in the music, media and entertainment industries. Opposing the bill are search engines such as Google, and free content websites such as Wikipedia. In fact, Wikipedia is planning on shutting down its English-speaking web portal for 24 hours on January 18th to protest the proposed legislation.

So what’s the problem?  As a person who creates online media myself, shouldn’t I be happy that Big Brother wants to provide me with additional legal channels to protect my online content?  If I find out that something that I wrote is being plagiarized on another website or taken so far out of context that it loses all of its original intended message, shouldn’t I have the right to sue that website for copyright infringement and seek financial compensation for any damage they may have caused to me or my online reputation?  If an advertiser on a website where my content exists is found to be engaging in illegal activity, shouldn’t I be protected from the damage done to my “brand” by that sponsor’s activities?

Online Censorship

The problem with the bill lies in its scope. The bill will provide copyright trolls with additional tools to stifle free speech and the exchange of ideas on the Internet. It would give the government criminal jurisdiction over sites such as Nolan Chart if they happen to accept advertising links to websites that are in violation of any US law. Search engines will be forced to alter the way they generate search results in order to cull out links to questionable websites.  Sites like Nolan Chart would be forced to check every column submitted for plagiarism, links to “illegal” websites or websites with questionable content. “Guilty by Association” and “Guilty Until Proven Innocent”, would be the norm on the Internet as hundreds of websites are shut down on the mere suspicion of illegal activity or association.  This would include YouTube, Wikipedia, Facebook, Blogspot, and hundreds of other websites that pride themselves in the free exchange of ideas and content.

The “Problem” with Online Piracy

 So who are the real victims of online piracy?  If you listen to the music and entertainment industry, they claim it is the artists themselves who suffer the most when their content is illegally downloaded and shared with users who did not pay for the content.  This is not true.

The “victims” of online piracy are the distributors themselves, not the artists.  True, when Sony’s profits are cut because Lady Gaga’s latest CD has been illegally downloaded, the music label has fewer resources to take a chance on emerging artists, and Ms. Gaga’s royalty check is probably a bit smaller than Michael Jackson’s was in the 1980’s.  However, the music industry has adapted to the new paradigm of the online world, whereas Sony has been slow to adapt. Today, both the emerging and established music artists knows that the real money is in live performances, not music sales. Today, every artist knows that the second a song is released to the world they have essentially lost control over it forever, and they have come to accept that this is not necessarily a bad thing, because the more widely known a song becomes, the more likely that fans will pay the $100+ per ticket to see the song performed “live”.

The movie industry argues that illegal pirating prevents studios from producing new movies. That actors like George Cluny will see smaller paychecks if their films are illegally downloaded and sold in street carts in Bombay. Again, this is not true.

While the studios in Hollywood have seen their bottom lines cut by online piracy, what we’ve seen evolve is a groundswell of independent content (some if it quite good) that’s being shared on sites such as YouTube. “Fan Fiction” has developed as a successful sub-genre of popular entertainment brands, which has generated massive profits in merchandising and other peripheral revenue sources. For example, toy-maker Lego has gone so far as to not pursue any fan-based content on the internet because they know that the more media that exists that feature their products, the greater their sales will be.

Picking Winners & Losers

So who will be the “winners” and who will be the “losers” should SOPA become law?

Winner – Copyright “Trolls”.  These are the lawyers who spend their time searching the Internet for people to sue for infringements of copyright or patents. They first seek out copyright holders to “represent” and then they search cyberspace for individuals who may be violating the law. They then contact the suspected “criminal” and inform them that they are being sued for copyright infringement and that if they want to avoid a costly litigation and possible jail time, to please remove the offending content and write them a settlement check for several thousand dollars. The lawyer’s “clients” may see up to 15% of these settlement checks, but what often happens is the original copyright holder doesn’t even know what their lawyer is doing and therefore never sees a cent of the damages collected. In many cases, the original patent or copyright holder is unaware that they are even being represented.

Loser – Online Content Providers and Search Engines.  Providers of online content will be forced to spend additional resources to carefully cull all of the content on their websites for possible violations in Copyright law.  In addition, they have to carefully cull all advertisers for the same violations whether they are based in the United States or not. If an advertiser or link to a site is even suspected of violating the law, the content provider is required by law to break the link pending the outcome of the investigation. The only exception to this would be if the content provider can show evidence that they show the proper due diligence in culling their online content for possible violations and maybe they’ll let one or two “mistakes” to fall under the radar, but this type of vindication would be settled in litigation, and by that time the defendant would have spent thousands of dollars in their defense and their website would be gone forever.

Winner – Content Censors.  Often, the mere threat of a lawsuit is enough to stop the production of online content, whether the lawsuit has any merit or not.  For those people out there who wish to control the content of the Internet, SOPA will provide them with the legal tools they need to censor the Internet for what they believe to be “offensive content”. Again, the defendant in such a case would likely win in court, but by the time the case has resolved itself, they would have spent thousands or millions in legal fees and the website would have been offline until the case was resolved, effectively killing it.

Loser – Producers of Online Content.  For those of us who produce online content, whether professionally or as a hobby, SOPA would be a game changer. As a column-writer, I have no doubt that what I write offends some people. I also know that I provide my readers with links to other websites in order to provide references and support for my arguments.  Under SOPA, if I happen to link my column to a website that is in violation of the law, I would be breaking the law.  If I say something that offends a particular group or individual, I could find myself being sued and I would have the choice of spending my money fighting the suit or settling.  Either way, I would be forced to part with my money for simply exercising my Free-Speech Right.

Ain’t Gonna Happen – Today

As I stated in the beginning of this column, HR3261 has a snowball’s chance in Ecuador of ever becoming law. Even if the House and Senate manages to pass the bill, President Obama has already said he would veto it. However, that doesn’t mean that the issue is dead.  The true believers of “moral censorship” and “big government” are finding many allies in the music, media and entertainment industries and they will continue to seek new ways to limit your ability to exercise your Right to speak your mind on the Internet.

As economic uncertainty generates more civil unrest in this country and around the world, the government will continue to do everything it can to maintain order by limiting the flow of ideas among its people.  This is a simple historical trend that occurs whenever powerful empires start to fall.  However, we can shorten the duration of the transition if we adhere to the principles of Free Speech and Free Exchange of Ideas by refusing to allow the government to silence us even when it believes it’s trying to protect us from “thieves”.

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