In 1980 Alvin Toffler in his classic book The Third Wave predicted that the coming digital age would radically alter the world as did the industrial revolution. While Toffler at the time did not know the word “internet,” he predicted with amazing accuracy how networked computers would change our lives by the year 2000.
That digital change has smashed the business models of travel agencies, movie studios, record producers, the post office, newspapers, photography (imagine, Kodak bankrupt), and telecommunications. Despite the technical progress, legal concepts of intellectual property now lag. They are in an era of big media corporations used to being protected by barriers to entry like locomotive-sized printing presses, broadcast towers reaching a third of a mile into the sky, multimillion dollar production equipment, and century old concepts of distribution systems.
But it’s all changing.
Now a 14-year-old in his bedroom can operate an electronic newspaper, a television and radio station, an editing suite for his garage band or movie production, and a retailing company. Or he can run it all out of his backpack or back pocket -- even Toffler failed to foresee tablets and smart phones (neither did Star Trek, for that matter).
But the legacy media are fighting back.
Threatened by cheap technology and the obsolescence of a distribution system going back to the sales of sheet music, record labels launched lawsuits on their customers. People just want to steal our product, they cried. Not entirely true, as Steve Jobs demonstrated with iTunes, which had seven-figure sales its very first week. Jobs knew most people are willing to pay for a product when it is marketed using contemporary technology.
Then there was the notorious Righthaven, a Las Vegas law firm that would sue individuals posting online articles from Righthaven’s client newspapers. No warning, no takedown notice, just a lawsuit for $75,000 and perhaps confiscation of your domain name. And then Righthaven would be willing to settle for a few thousand dollars. Righthaven’s founder bragged that it was a great business plan – go to court or settle, he couldn’t lose. But he did when a federal court revealed Righthaven was in a partnership with a newspaper publisher and was not entitled to file copyright suits. But perhaps Righthaven is an extreme case – it was not about copyright protection; it was about legal extortion or what Wired magazine called “copyright trolling.”
Which brings us to something more ominous than a rogue law firm or tone deaf record companies (no pun intended) suing the customers -- the proposed federal Stop Online Piracy Act (SOPA) and companion Protect IP Act (PIPA). The basic thrust of SOPA is that internet providers like Google or YouTube will become civilly or criminally liable for posting material that violates copyright.
Copyright protection is important. And copyright holders should have the right to go after those infringing upon those copyrights. No argument there. But holding internet providers liable will destroy the basic function of the internet – free exchange of information. With the millions of pieces of information moving around the net, there is no way internet service providers can police it all for copyright infringement.
Internet service providers, like transportation companies and utilities, are common carriers. They are open to all who desire their services and they cannot be held liable for unknowingly allowing criminal activity to flourish through their services.
For example, if an escaping convict buys a bus ticket, the bus company – if it does not know the person is an escapee -- must provide transportation. It cannot be held liable for aiding in an escape. It would be ludicrous for the bus company to do criminal background checks on every passenger wanting to ride (Shhhh – don’t give the Transportation Security Administration any ideas).
If a person has a house and seeks electric or gas service, the common carrier utilities must provide it, assuming bills are paid. The utilities are not liable if a person uses the house to run a meth lab because under normal circumstances they could not know. (Although Homeland Security is seeking a change: “If you see something, say something” they whisper to the electric meter reader).
At this writing, members of Congress are backing off their support of SOPA. Constituents are complaining and when thousands of web sites went dark on January 18 it presumably got the message across. But that did not stop the U. S. Justice Department on January 20 from announcing criminal indictments against people involved in the Megaupload file sharing site and shutting down the site. Which raises the question: if the feds can already make such a move (and have people in New Zealand and other countires arrested for alleged piracy), who needs SOPA? And is all this criminal activity? As Megaupload defense attorney Ira Rothkin said: “It’s a civil case in disguise.”
There needs to be copyright protection. We have courts for that. If I post a Disney short online, Disney can come after me. But leave YouTube out of it. And, of course, there are already laws on the books regarding libel, terroristic threatening, pornography, etc. They can be applied to the internet with perhaps some minimal – minimal! – tinkering to adjust to technological realities.
Besides legacy media calling for extreme steps in copyright protection, there are also two possible back stories regarding SOPA. One is that it’s all about control. Governments hate – hate! – the freewheeling communication offered by the internet. Threats of copyright-related indictments will slow down the exchange of free information. That makes big government happy.
The other possible back story of SOPA is the opportunity for lots of litigation. With so many lawyers in Congress, litigation is a language they readily understand. Perhaps the bill shouldn’t be called SOPA, but “FEFLA:” the Full Employment for Lawyers Act. Lots of money to be made holding deep pocket internet service providers like Google liable.
A positive thing about the SOPA issue was how internet providers responded. Some shut down for a day. It was not enough to disrupt things, but it caused some inconvenience and got the message across.
Finally, businesses decided to stand up to the increasing control of the federal government. It’s about time.
Farmers, oil companies, and truckers are you paying attention?