Ethics @ Work: Online piracy legislation is problematic

Realistically, passing the bill is not going to kill the Internet, and defeating it is not going to cost millions of jobs.

January 19, 2012 23:06
4 minute read.
Wikipedia blackout.

Wikipedia blackout 311. (photo credit: Wikipedia)

If you tried to access the English-language Wikipedia on Wednesday, you noticed that for the first time ever it was intentionally blacked out. (If you were clever, you just accessed whatever you needed through the Google archive.) The reason was a protest against legislation pending in the United States that Wikipedia thinks is a threat to the viability of the project. The bill is called the Stop Online Piracy Act, or SOPA for short, and has generated much controversy.

The problem the bill is intended to solve is widely agreed to be serious. The owners of copyrights to books, recordings and movies have the exclusive right to distribute them, which enables them to get paid for their creations.

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Once upon a time it was pretty easy for them to enforce this right. Printing presses for books and vinyl presses for records were so expensive and rare that pirated materials were costly to make, easily traced and generally low in quality. Digitization plus Internet created the opposite situation: Perfect copies are virtually cost-free to create and widely distribute and are very hard to trace.

The first step in the legal battle against online piracy was establishing that it was in fact illegal. Obviously the original statutes did not relate to files or to the Internet, which did not exist when they were drafted.

This was achieved mainly through legal rulings, such as the Napster case, which established that these sites could be considered “commercial” use even when they do not charge for the files.

The next step is to create legal means to effectively fight such piracy. That has proven to be far more difficult, and SOPA is one controversial effort.

The main complicating issue is that site operators do not just announce: “Here is a site with lots of great pirated songs.” They open a generic file-sharing site, which is good for pirated songs but also for homey YouTube style clips, cookie recipes, doggerel and what not. When it turns out that 99 percent of the content is copyrighted, the site owners say it is not their problem; it is between the copyright owner and the infringers, meaning the people who upload and download the files.

The second complicating issue is that people locate piracy sites in out-of-the-way jurisdictions with weak laws or weak enforcement.

As a result, lawmakers concluded that the only effective legal tool is to sanction very roundabout participation in piracy. A US site that provides a link to a foreign “pirate site” could be blocked.

Here’s how roundabout it could get: Person A posts a presumptively copyrighted song on website B, located in Freedonia. Person C, perhaps also in Freedonia, posts a link to site B on US website D. Under one possible interpretation of SOPA, the copyright owner could seek an injunction against D (though only after taking steps against B). Yet D did not post pirated materials, did not host them and did not actively link to someone who hosted them. The copyright owner’s true beef is with A.

To add to the difficulty, A or B or C sitting in Freedonia may have some claim that would convince a judge that the post is legal, but A and B and C are not in a US courtroom – only D is! D can, of course, turn to them and ask them for exonerating evidence, but they are beyond the reach of US authorities and have little incentive to provide it.

It is exactly to avoid such roundabout liability that current legislation includes “safe harbor” provisions that preclude taking actions against sites that have no active role in infringement and that take timely action to remove infringing content. The new legislation would compel websites to be much more proactive in monitoring infringement.

A related issue is “chilling.” The concern is that sites would end up going well beyond the letter of the law to avoid getting hauled into court even if they are sure they would win. It would be easy to seek an injunction against a site, but even if it is also easy to fight an injunction, no company wants to spend his time in court instead of trying to improve their site. Rights owners could bully sites that post even legal content.

The claims of both sides in the battle are farreaching and likely exaggerated. A supporter of the legislation, Rep. John Conyers, said, “Millions of American jobs hang in the balance,” while tech journalist Wayne Rash, on, said the bill “could effectively kill e-commerce or even normal Internet use.”

There could even be a worst-of-both-worlds scenario in which the legislation hampers legitimate businesses without really making a dent in illegal activity.

There is no question that the stakes are high on both sides. But realistically passing the bill is not going to kill the Internet, and defeating it is not going to cost millions of jobs.

It would be helpful if someone could get us past the hyperbole and make a preliminary effort at quantifying the likely true costs and benefits of the proposed new regime.

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Asher Meir is research director at the Business Ethics Center of Jerusalem, an independent institute in the Jerusalem College of Technology (Machon Lev).

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