Making websites walk the plank
Anti-piracy legislation in the United States would reach into Canada
On 18 January, 2012, Wikipedia went offline. Undergraduate students around the world took to Twitter to solicit ideas about how they could do their homework.
And it wasn’t just Wikipedia. Many websites that millions frequent went dark. Fark. The Oatmeal. Reddit. Boingboing. WordPress. Others, including Wired, Google, and Funny or Die, opted to employ censorship-themed graphics for the day. Most posted links for their readers to understand why the sites shut down, if only for a day.
This was the first large-scale cyber protest in history. Its targets: the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA), two pieces of legislation that were then winding their way through Congress in the United States. Both bills – one introduced in the Senate and the other in the House of Representatives – were designed to continue the ill-conceived legacy of 1998′s Digital Millenium Copyright Act (DMCA).
For many Internet users, the day of protest was their introduction to Internet regulation. And it was largely successful in its immediate aims. PIPA and SOPA won’t be back before Congress – at least not in their present forms. The witch is dead, but now we know there are witches; a larger danger looms.
Yarr! A history of fighting piracy
Online copyright infringement is a legitimate concern. We’ve been collectively wondering how to regulate and enforce copyright online since the first person figured out how to post a video. File sharing programs like Napster, KaZaa, and Limewire, websites like YouTube and Google, and the ever-increasing number of torrents all contribute to widespread piracy of copyrighted materials. Some make their living by facilitating the illegal copying of protected works, while others host the same, but abdicate legal responsibility onto the backs of the users.
The DMCA was the first real attempt to legislate copyright on the Internet in the United States. The Internet became prevalent so quickly that vast oceans of information rapidly opened up – dangerous, uncharted waters that copyright legislation had never navigated.
Predictably, organizations like the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA), who form the nexus of the copyright lobby, pressured Congress to introduce a legislative regime that protected copyright on the net. This was neither an unreasonable nor unexpected aim. The MPAA and RIAA are big players in the film and music industries and have a vested interest in ensuring that their products create the maximum possible financial return. Music and movies are businesses, after all, and copyright does actually matter. Copyrighted works are the fruit of someone’s labour, and the content producers rightfully expect to be compensated for their work. Their lobbying led to the DMCA, which made it easier for content producers and copyright owners to force unauthorized copies of their content off of the Internet.
The DCMA allows content owners to make a copyright claim and demand that the file be taken offline. For example, CBS could identify a YouTube video of Two and a Half Men (probably just by how unfunny it is, but we’re not questioning their methods of identification) that had been uploaded without authorization. They would then inform YouTube of the infringement, and YouTube would be required to take the video down under the DCMA. If the video was being used in a way that was exempt from copyright laws, such as fair use, it was up to the uploader to show that they did not legally infringe CBS’s copyright.
For example, you could post copyrighted clips of Two and a Half Men on YouTube as part of a series of critical reviews on horrible American TV shows. Under the Copyright Act of 1976, your use of these clips is exempt from copyright. Likewise, Roger Ebert doesn’t need to worry about infringing on the copyright of the films he reviews. But in these situations, the user (you, Ebert) must prove that there were no copyright infringements; CBS doesn’t have to prove it.
While this created a highly inefficient system, it did create a system. YouTube and similar sites weren’t legally culpable for copyright infringement as a result of someone uploading a video. But the sheer mass of material makes complete self-regulation impossible; there are millions of videos on YouTube, and CBS can’t sift through all the videos to be completely sure that its material isn’t being reproduced. No one could watch that much Two and a Half Men.
Yarr! As piracy grows up, so do its enemies
Over the past few years, as high-speed Internet became the global norm and file sharing became easier and faster, the copyright lobby started pushing for a new legislative regime to make policing the Internet easier.
Enter SOPA and PIPA. Both nominally designed to cut down on Internet piracy and copyright infringement. Both deeply flawed pieces of legislation. Most websites of importance were against SOPA and PIPA, and with good reason.
Either bill, or some hybrid of the two, would allow the US government to shut down websites that post copyrighted material. The legislation would make YouTube responsible for anything uploaded to the site, regardless of the source. It would force Google to omit infringing websites from its search results, using the same methods that countries like China and Iran employ to limit what citizens access online.
Yarr, eh! Anti-piracy’s weird Canadian cousin
Because Internet protocol (IP) addresses (a numerical identifier unique to each computer or device online) are doled out regionally, rather than nationally, SOPA and PIPA would have considered Canadian and Caribbean IP addresses domestic and would have sought to regulate the actions of any dot-com, dot-org, or dot-net domain – regardless of whether the website was registered in the United States or not.
In theory, this means that if a CBC.ca article linked to a video that was posted without authorization, the government of the United States could shut down the website of Canada’s state broadcaster.
Now that PIPA and SOPA are dead, attention should turn to Bill C-11, an act to amend the Copyright Act of Canada. The copyright lobby is fighting hard to have SOPA-type provisions inserted into the Canadian law. University of Ottawa law professor Michael Geist frequently blogs about the dangers of C-11, and while he likes several aspects of the bill, including a new distinction between commercial and non-commercial infringement and new consumer rights for format and time shifting, he also expresses consternation over the degree to which US-based lobby groups have input into the content of the less attractive provisions.
Organizations like RIAA and MPAA suffer from an inability to adapt to the new media landscape. After all, in some instances, they can benefit greatly from copyright infringement.
See: Beiber, Justin.
Sho’ty, wit’ Yarr!
Now, I’m pretty sure that, at the age of 13, the Biebs didn’t pay SOCAN – the Society of Composers, Authors, and Music Publishers of Canada – for the right to post his versions of copyrighted songs on YouTube. That’s right! Singing someone else’s song and posting it on a video-sharing site is technically copyright infringement.
YouTube made Justin Bieber famous, and now Justin Bieber makes a lot of money for a lot of people. The RIAA benefits from Bieber’s success, even though it may have been birthed from the foul loins of copyright infringement.
Bieber, of course, isn’t the only one. Boyce Avenue got a record deal on the basis of their YouTube cover songs. Arnel Pineda did one better and became the new lead singer of Journey because he posted videos of himself covering their hits.
Sure, not everyone on YouTube is involved in these nefarious acts of appropriating another’s work and posting it online. There are plenty of YouTubers that produce original content, but even they would be negatively impacted by the passage of PIPA or SOPA-like legislation.
YouTube’s business model relies on viral videos, basically. Google owns YouTube and subsidizes the losses of the tube site. YouTube raises considerable amounts of revenue, based on traffic, and Beiber’’s videos generated millions of hits, creating an important revenue stream that allows YouTube to exist, which in turn provides a home for guys like this. Take away the material that infringes copyright, and the whole thing falls apart.
The anti-pirates in their twilight years (quiet, Yarr!ing snores)
Few would argue that the Internet should exist as a lawless virtual space where rights don’t exist the way they do in real life. Meaningful copyright protection is both important and complicated. But there also needs to be a considerable change in the modus operandi of the MPAA and RIAA, old organizations as unprepared for the digital world as the octogenarian legislators to whom they make campaign contributions. They’re out of touch with the media landscape.
The bigger threat to the old-school media vanguard, though, probably comes in the form of Radiohead releasing an album online for whatever price the downloader wishes to pay, or comedian Louis CK producing his own comedy special and releasing it on his website for $5 per download. Artists are increasingly embracing new ways to cut out the middlemen and reach their audiences directly, which is only a good thing for both the artists and the consumers. Most of us would feel much better knowing our dollars were going directly into the pocket of the artist rather than to some nameless, faceless organization that pays the artist a percentage of the purchase price.
Part of meaningful reform is bringing the point back around that copyrighted works are someone’s labour, and they should be paid for their work. Whether the content originates from an individual artist or a huge movie studio shouldn’t be of any consequence.
SOPA and PIPA were bad legislation based on good intentions, and C-11 is a flawed but fixable bill that requires the right convergence of opposing groups both to affect the changes that are needed, and to keep the Internet open and free. The United States isn’t abandoning its march towards online copyright reform and the fight against digital piracy, so it is all but guaranteed that we will see a new legislative attempt at reform in the near future, hopefully in the form of meaningful, effective reform. The other option – that the recent online protests merely kicked the can a bit further down the road – is worrisome.
An adequate legislative response to these issues would likely be complex and nuanced in ways that have yet to be properly considered. The challenge laid before legislators, then, is to present a bill that creates an efficient mechanism for copyright owners to have unauthorized copies of their work removed from the web while ensuring that the hosting sites remain free of undue or cumbersome responsibility onus. Websites should not be shut down because some of its users pillage and plunder copyright owners.
After all, if someone photocopies an entire book, the law doesn’t go after Xerox for making it possible.