I’ve been meaning to write about the Stop Online Piracy Act and the PROTECT IP Act, and even though they have been put on hold thanks to widespread Internet activism, they’re not dead yet, and laws like them are sure to follow.
I am a game developer and a writer. And I do not support SOPA or PIPA.
Because I rely on the Internet and copyright, and these laws would undermine both the Internet’s functionality and the perception of copyright by the public in ways that would negatively impact me.
Some Copyright History
Copyright is complicated. There isn’t one law you can look at that incorporates the entirety of it. I wrote an article long ago as a what an indie game developer needs to know about copyright, but a lot of copyright law is related to court case rulings, so to really understand copyright, you probably need an expensive lawyer.
And that’s a mere symptom of the issues I have with SOPA and related laws.
The U.S. Constitution has what is known as the Copyright Clause: Article 1, Section 8 of the US Constitution specifically says that Congress shall have the power to “promote the Progress of Science and useful Arts”, and it specifies how Congress shall do so: “by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Some people have this backwards and they think that the purpose is to protect creators, but copyright is supposed to be a means to encourage the creation of useful things.
Copyright used to last 14 years, with the right to renew for another 14 years. New laws changed the length over the last couple of centuries, and today we have copyright lasting for 70 years plus the life of the author, or in the case of a corporation, 95 years from publication or 120 years from creation, whichever is shorter.
Stacking the Deck
Effectively, copyright is no longer limited. Whereas creators from 50 years ago were able to depend on a rich replenishment of the public domain in their lifetimes (Disney was able to leverage the public domain to build up a very successful company), creators today see that the public domain hasn’t changed since that time. The constant change in copyright law and copyright length benefits those creators and businesses who have the resources and existing copyrights while making it more difficult for new creators and businesses.
Recently, the Supreme Court said that the public domain isn’t permanent, and while the case was about granting copyright to foreign works that were supposed to have copyright in the first place, the idea that the public domain can be made even smaller by an action of Congress stinks for new creators.
But even if you forget about the benefits of a healthy and rich public domain, copyright laws have become more and more biased towards large, existing companies and organizations.
Abuse of Copyright
Remember the Digital Millennium Copyright Act (DMCA)? It was signed into law in 1998, and among its provisions, it made it a felony to merely own the means of circumventing copy protection mechanisms, even if you didn’t use the means. Even if you did circumvent the protection and weren’t committing infringement as a result.
The DMCA was supposedly necessary to protect jobs and copyright owners, yet it was horribly abused, even by those who weren’t trying to protect their copyright at all. Google found that out of all of the takedown notices it has received, more than half involved a business issuing a takedown against a competitor, and over a third were for invalid copyright claims.
For one example, under the DMCA, Viacom issued thousands of takedown notices to YouTube, and some of the content taken down wasn’t Viacom’s copyrighted works. In another example, Walmart, Best Buy, Target, and a number of other retail stores issued a takedown notice to FatWallet.com to force them to remove user-posted sales prices for their Black Friday sales, even though price lists don’t fall under copyright.
In both cases, large companies with lawyers on staff were able to leverage the law against someone else’s legitimate postings. If you are targeted wrongly by a company using the DMCA, your recourse is expensive and slow.
You can read more about other DMCA abuses at the EFF’s Ten Years of Unintended Consequences page, but these abuses are getting to the crux of the matter.
The DMCA wasn’t about protecting copyright. It was about control.
Respect for Copyright Eroded
In the past, most people didn’t create copyrighted works. It was expensive to create and distribute books, movies, TV shows, and other content. There were gatekeepers and high barriers to entry. You needed a lot of capital to start a business that relied on copyrighted content.
Today, 48 hours of video gets uploaded to YouTube every day, and most of it is not produced by the MPAA. Today, print-on-demand and ebook publishing means there are more self-published books than traditionally published books. Today, many long-standing newspapers have found it difficult to compete in a world of citizen publishing. Today, the Internet and social media has created plenty of successful new business models.
And yet we keep hearing about how the major media companies are threatened by all of this individual expression and creation, as if a few companies are supposed to be the sole producers of culture and content.
The problem is, a lot of people act as if the media companies are right!
Most people don’t have much education about copyright law. Again, part of this is because of how complicated the law is, and partly because historically most people didn’t create copyrighted works. But part of it is because the major media companies have done such a good job of telling this story. Politicians are heard parroting absurd numbers provided by the MPAA and RIAA, and any media coverage is entertainment anyway so forget about getting the facts there.
So even though copyright is a tool for all creators, what happened is that the general public views copyright as a tool of the major media companies to abuse customers and make more money. And when laws like the DMCA and SOPA are supported by politicians who clearly have no idea what impact the laws would have on new businesses and new creators, it furthers this perception of copyright as a tool of companies who can afford to buy it.
SOPA and PIPA
If you still don’t know much about SOPA or PIPA, they are twin pieces of legislation that are supposedly about protecting U.S. copyright owners against offshore rogue websites dedicated to piracy. In reality, they would do nothing to prevent actual piracy while giving major media companies more tools to (ab)use the public with. Here’s a very informative video explaining the problems with how these laws would “work”:
Now, there’s a lot of problems that people have identified. Some of it sounds overly sensationalized, yet information security experts, free speech experts, computing experts, and business experts have all agreed that the problems are real. But I’ll leave it to them to talk about the technical, financial, and social problems with the proposed laws.
SOPA supporters say that the people who are opposing it are bringing up worst-case scenarios and that the imagined abuses wouldn’t happen in real life. Well, companies such as Viacom have shown that abuse will happen, and likely sooner than later.
The infamous comparison by the MPAA that the VCR is like the “Boston Strangler” and the broadcast flag regulations are attempts to control when and how people watch movies and TV. SecuROM are attempts to prevent copying that sometimes worked so well that legally purchased games wouldn’t run on some computers. Sony BMG’s rootkit made many legitimate music CD customers unhappy when their computers were compromised, especially as the company’s President seemed to shrug about the issue. And so on and so on.
Why I Care about Copyright Law
The failure rate of entrepreneurship is high, and I have enough trouble bumbling through learning how to run my own business. This crony capitalism makes it harder for me as an independent game developer.
There are new businesses taking advantage of the reality of the Internet. We like being able to take advantage of the ease of creation and distribution. Why do we have to worry about old businesses changing the laws in order to break what new technology allows so that they can continue their old scarcity-based business models? Why are they more important than the people starting new businesses and creating new jobs, especially in this economy?
When they cry that they are having existential dangers that need to be stopped while simultaneously reporting record profits year after year, why is the U.S. government saying that “online piracy is a real problem that harms the American economy, threatens jobs for significant numbers of middle class workers and hurts some of our nation’s most creative and innovative companies and entrepreneurs”? Who told them that? Where is the actual evidence? The Cato Institute analyzed the numbers presented by the MPAA, and it seems we have been conned.
And after all of the duplicitous, all of the lobbyist money buying regulations, laws and policies, and all of the chafing, I am supposed to expect that my potential customers will respect copyright law, no matter how absurd and one-sided it gets? I can’t make a living in a world where the major media companies get their way.
And they’re fine with that. Less competition for them.
And if the above didn’t convince you of the problems we’ll be facing in the coming years from the established media companies, this TED talk by Clay Shirky is a quick summary of the problems laws like the DMCA and SOPA/PIPA pose to small businesses and individual creators: