SOPA Is Not A Black Or White Issue

by · December 26, 201115 comments

My friend Jeremy Dearringer asked me what I thought of the Stop Online Piracy Act (SOPA) this morning on Twitter. I haven’t given it a lot of thought, but have mulled it over a bit. Unlike most social media persons, I’m not one to quickly jump on a bandwagon without considering the issues at hand. While the opponents of the bill have done a good job of leading the lemmings off the cliff by saying, “This will shut down YouTube and Twitter!” or “This gives the government the right to force PayPal and ad networks to not do business with Facebook, meaning you won’t have Facebook anymore,” the reality of what the bill can do and what it will do are always different.

Don’t get me wrong, I’m not advocating for SOPA. But I want us all to step back and think about it a minute. What’s really at issue here is a person or organization’s right to own their intellectual property and protect it from being exploited without their permission. Most of us in the social media world have been conditioned to follow an open source mantra about IP because very few of us have IP worth protecting. Your blog post isn’t going to earn you millions of dollars. Neither are your shitty YouTube videos.

Wry

David LaMotte. Image by nekonoir via Flickr

But if you’re, say, David LaMotte, a singer-songwriter who has always shunned the big-bucks music industry and travelled from coffee shop to indy arts club performing his music and selling his CDs one-at-a-time, by himself, for over a decade — and that’s your livelihood, you’d see it a bit differently. When someone takes his song or music video and puts it on their blog or Facebook page without his permission, he is technically missing out on potential revenue. Sure, the promotional effect should be off-setting, but what if that blog post garners the site hundreds of thousands of pageviews, which is then translated into tens of thousands of dollars in monthly advertising? Does David LaMotte have a claim to a little residual or royalty for helping the site drive revenue? I’d like to think so. (NOTE: I have no idea what LaMotte thinks of SOPA. Just using him as an example as someone who might need help protecting his IP.)

Yes, it scales upward. Movie studios, record companies, professional sports leagues, television networks … most worth billions or trillions … want to protect their Intellectual Property, too. So they support SOPA since it will allow their attorneys to force websites to adhere to IP protection laws. It protects their exclusive channel, and the resulting revenue, rather than drives more money to them. But because these companies are big, faceless, wealthy giants, we in the social media space suddenly don’t like them.

If Jeremy, whose company Slingshot SEO, produced some software or code that it wanted to protect, but like the entertainment industry it also had to expose publicly, my guess is he’d have a different stance on SOPA. I’m betting most of you would too if you had a book, CD, piece of art, performance, code or idea that was potentially worth a lot of residual revenue. But most of us do not, therefore, we rail against the machine.

SOPA is likely to pass. I, for one, hope it doesn’t. The way the bill is currently written, it’s far too totalitarian and intrusive. Yes, the potential is there for it to shut down sites that accept user-generated content. If you have an NBA jersey on in your picture of you hitting a bong, the NBA could certainly use SOPA to cripple and potentially shut down Facebook since it didn’t approve of its image being used in that manner. There needs to be more of a middle ground.

But there doesn’t need to be a policy of 100 percent open market for everybody’s stuff. Unfortunately, that’s what the social media-ratti seem to be advocating for. And that would mean that no one who produces content can ever really count on profitting from it. As a content producer, I take exception to that approach, too.

SOPA needs to be stopped, but not completely. The idea is right, but the execution is extreme. Let’s rethink it and approach protecting Intellectual Property in a reasonable fashion that holds the violator responsible, not the channel or mechanism. If you post an excerpt from my book illegally on your blog, I should be able to hold you and your blog accountable, not WordPress. Facebook shouldn’t be shut down or penalized because one dipshit used a Ford logo out of context.

Let’s sign the petition to help stop SOPA, but then let’s come up with a solution that works. We’ll all be better for it.

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About Jason Falls

Jason Falls

Jason Falls is a leading thinker, speaker and strategist in the world of digital marketing and is co-author of two books, No Bullshit Social Media: The All-Business, No-Hype Guide To Social Media Marketing and The Rebel's Guide To Email Marketing. By day, he leads digital strategy for Elasticity, one of the world's most innovative digital marketing and public relations firms. Follow him on Twitter (@JasonFalls).

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Comments on Social Media Explorer are open to anyone. However, I will remove any comment that is disrespectful and not in the spirit of intelligent discourse. You are welcome to leave links to content relevant to the conversation, but I reserve the right to remove it if I don't see the relevancy. Be nice, have fun. Fair?

  • http://www.compendium.com/ Frank Dale

    I am in complete agreement with your stance Jason.  I don’t support SOPA, because the enforcement mechanism is draconian.  I do support the right for people to profit from intellectual property they create.  I think we can have a free and open internet that protects free speech, while also protecting intellectual property rights.  I am not sure how we will do that and I hope that the debate over SOPA will lead to a better system for all of us.

  • http://twitter.com/FabulousTahoe Jack Durst

    I’m for rational copyright protection, but ONLY if it honors fair use and protects the existing internet infrastructure.  Kill SOPA outright and put forward a new bill written by someone who actually understands how the internet works.  Our existing copyright laws ARE insufficient and do need reform, but the reform that’s required is NOTHING like what’s in this bill.  I would trust Sen. Al Franken, who has some skin in the game as an artist and copyright holder, but also has a solid understanding of the pitfalls of overregulating the internet.   

  • Anonymous

    The problem is that the RIAA, MPAA, and such believe “holding the violator responsible” means ruining their lives by arbitrarily assigning a charge per file up to $150,000. There’s no good solution here because it just ends up with the leaders of a company that is becoming rapidly obsolete throwing a baby tantrum that they can’t charge $20-50 for their products anymore.

  • http://twitter.com/shanebarnhill Shane Barnhill

    Jason, I don’t think that the “social media-ratti” are advocating a policy “of 100 percent open market for everybody’s stuff.” Certainly, the companies that have come out against SOPA (see Jeremiah Owyang’s list here: 
    https://plus.google.com/111654284395316165338/posts/gP54Etfs4dp) aren’t advocating that approach.

    There may be some SOPA critics who want the Napsters of the world to thrive. But I think they’re in the minority. Instead, the opposition to this bill is really more about governmental control without a reasonable process. I think that is truly what has people up in arms. Piracy prevention may be an admirable goal, but any bill designed for that purpose needs to have very specific language.

  • http://www.theincslingers.com/blog Simon Salt

    Jason, thanks for being the voice of reason in this situation. As I’m sure you’ve already encountered, people infringe copyright all the time with my book. I’ve had to send out more than 50 emails to various websites offering fee downloads of the book as a .pdf. The argument I’ve had thrown at me is that I didn’t lose income because those people wouldn’t have bought the book anyway. WTH??? Then why would they want a free version? Personally I’m not enamored with those who scream about things being free – that piracy isn’t piracy its the redistribution to those who can’t afford to buy the original content. Your example of the wandering artist is a great one, but those artists who do make millions by going the big business route aren’t evil either. Isn’t the point of living in a so called democracy that you are able to choose the path you want – providing you aren’t harming others, you should be free to choose how to make your money and those who bitch and moan that you have made it and therefore you don’t deserve any more need head checks.

    • Manchershaw Engineer

      Simon, capitalism is a system based on exploitation.  You might not blame those trying to make a buck at people’s expensive, but the people they had to walk over to get there certainly do.

      Just because someone doesn’t subscribe to your ideology doesn’t mean they need their head checked.

  • http://twitter.com/dino_dogan Dino Dogan

    As a failed musician, -or to put a positive spin on it, a musician who hasnt succeeded yet :-p – I may be able to relate what David LaMotte’s would have to say. 

    David would be thrilled if his music saw the kind of exposure you describe in your post, Jason. 

    The established acts (think Metallica vs. Napster), movie studios, and organized, big-money entities are who is behind this bill. It’s natural for them to try and protect themselves. When a king comes into power, he does everything he can to keep it. Alas, there is always someone waiting to dethrone. 

    Let’s go back in history and look at companies like Disney. Walt Disney has ripped off European fairytales and built an empire on top of someone else’s intelectual property. 

    Has anyone ever wondered why Hollywood movie industry flourished in Hollywood? I mean, why not NY?

    The answer is that the West Coast (back then) was outside the “reach” of European copyright laws. 

    Personally, I dont care if SOPA passes or doesnt. First, I can live without Facebook. And second, pirates never cared for laws. Laws never stopped pirates from pirating. 

    Sorry to go on and on, Jason. This is a topic I feel very strongly about. I am sure that once I’m the king, I will change my mind completely about the whole thing :-) 

  • Anonymous

    I saw Eric Scmidt (Google) talk on SOPA today on C-Span. Clarifed a lot of possible long term problems. I agree w/him SOPA isn’t best answer to problem and could create some intense censorship. He was in DC testifying against. Pretty much echoed your thoughts.

  • http://www.socialmallard.com/ Kevin Briody

    Jason – I’m not seeing much in the way of critics of SOPA truly advocating for a “100 open market” – that’s a bit of a straw man. Sure there are some extreme free content folks out there, but they are not representative of the bulk of reasonable critics to PROTECT IP/SOPA from what I’ve seen and read. Aside from the potentially dramatic effects SOPA would have on the ‘Nets technical infrastructure, the chilling of free speech, the potential for rampant abuse, the total lack of due process, and the betrayal of US moral standing on the topic, one of my biggest beefs is that there IS a law on the books for this: the DMCA. 

    Copyright holders generally complain that it takes too much work to use it, therefore they want easier (for them) tools and the onus to be placed on the network via some mystical magic dust – and damn the consequences. The result is an abomination like SOPA, written by and for the entertainment lobby.

    I understand your concerns about others profiting off your hard work, but 1) use the DMCA to issue takedowns and 2) recognize that there has to be a balance, and when push comes to shove we as a society MUST err on the side of protecting speech and innovation on the Web, even if content creators lose some revenue in the process. To create a draconian copyright enforcement regime that cripples the innovation, experimentation, and creativity (yes, some of it realized via copyright violations) is to blow off our head in order to save our body. 

    I’m no free Web fantasist, but things like SOPA represent the fastest way to a stagnant society and economy I can imagine. There has to be a balance, and SOPA destroys any semblance of it, which is why you see the huge outcry. 

  • http://www.socialmallard.com/ Kevin Briody

    Jason – I’m not seeing much in the way of critics of SOPA truly advocating for a “100 open market” – that’s a bit of a straw man. Sure there are some extreme free content folks out there, but they are not representative of the bulk of reasonable critics to PROTECT IP/SOPA from what I’ve seen and read. Aside from the potentially dramatic effects SOPA would have on the ‘Nets technical infrastructure, the chilling of free speech, the potential for rampant abuse, the total lack of due process, and the betrayal of US moral standing on the topic, one of my biggest beefs is that there IS a law on the books for this: the DMCA. 

    Copyright holders generally complain that it takes too much work to use it, therefore they want easier (for them) tools and the onus to be placed on the network via some mystical magic dust – and damn the consequences. The result is an abomination like SOPA, written by and for the entertainment lobby.

    I understand your concerns about others profiting off your hard work, but 1) use the DMCA to issue takedowns and 2) recognize that there has to be a balance, and when push comes to shove we as a society MUST err on the side of protecting speech and innovation on the Web, even if content creators lose some revenue in the process. To create a draconian copyright enforcement regime that cripples the innovation, experimentation, and creativity (yes, some of it realized via copyright violations) is to blow off our head in order to save our body. 

    I’m no free Web fantasist, but things like SOPA represent the fastest way to a stagnant society and economy I can imagine. There has to be a balance, and SOPA destroys any semblance of it, which is why you see the huge outcry. 

  • http://womeninbusinessradio.com Michele Price

    As usual you have found a more balanced view on a hot topic.  Now how can we have more business people involved in these decisions to keep our public policy makers accountable?  Oh darn that is how we have the mess we do with corporations buying government. ( she walks off to think some more)

  • http://ariherzog.com Ari Herzog

    Jason, you and your readers need to understand that SOPA is one part of two companion bills. The Stop Online Piracy Act lies in the House of Representatives, and the Preventing Real Online Threats to Economic Creativity and Theft Intellectual Property Act (or PROTECT IP Act) is in the Senate.

    There’s been a lot of press regarding GoDaddy’s support of SOPA, but keep in mind there is another bill. The language is comparable in both bills, but they’re not identical.

  • http://twitter.com/Linztm Lindsey Anderson

    I really don’t understand how attempting to police something that doesn’t belong to the United states is ever a good idea.  Something like stolen digital property should be the responsibility of the companies that created it.  If I go into your store and steal a DVD to watch in my house, the police aren’t going to setup shop inside your store and pat down everyone walking out.  It’s your responsibility as an owner to handle loss prevention, which is exactly what this is.

  • http://twitter.com/saving4someday Sara Hawkins

    The difficulty with SOPA, as opposed to DMCA, is that SOPA can take down entire companies based on an allegation which may turn out to be false. So after a website like eBay is taken down by a company which alleges that there are Intellectual Property violations, it’s up to eBay to challenge in the courts. In the mean time no revenue. And at the end when it’s determined that the company alleging infringement has no basis, then what? Too bad for eBay?

    What about your site? You put up 3rd party IP you think you may have a Fair Use argument to use. The IP owner disagrees. Under DMCA the host company removed access to the offending page and you have a right to counterclaim. Under SOPA your site is taken down in its entirety and to get it back you go to court.

    As an attorney who does IP work for small businesses, I’m keenly aware that people rip off their IP constantly. I’ve represented Fortune 500 companies who aggressively police their IP and are called names for doing so. Thousands of message boards and communities have tens of thousands of pieces of infringing content throughout. I see both sides – both as a lawyer and as a content generator. Copyright Fair Use is hard enough and gets people in to hot water, but at least with that there is a trusted mechanism to seek damages if someone takes your property and it’s not Fair Use. Just because the owner may not want the Copyrighted IP to be used, that doesn’t mean it’s not fair use. But issue a take down and in the mean time DMCA will allow you to take down the offending page(s). Not the entire site!

    There are so many content providers now whose work is not, in fact, protected by Copyright even though they think it is. And even if protected by Copyright, the use may be Fair Use (such as a single thumbnail image on Craigslist or eBay or Facebook). But SOPA doesn’t care about these distinctions. Not just the allegedly offending page come down but the entire DNS.

    I think there needs to be an evolution of online protection for Trademark and Copyright, beyond DMCA which only applies to Copyright. The internet has made it easy to distribute content, regardless of whether that content is yours or rightly used by you.

    Furthermore, we have issues of IP ownership that often are unclear or mistaken. Many people don’t want images of themselves used but unless there is a right of privacy, it’s the person who takes the photo, not the people in the photo, who have rights to the image. Same with books. The author may own the inside content but the cover art may be owned by another person (and/or company).

    I don’t think anyone would argue that protected IP should be protected and infringers should be taken down and deal with the consequences. And with that comes due process. With SOPA, the bill comes at it from an angle that there is such imminent injury that we ‘shoot now and ask questions later’. The Internet is not the wild west and as citizens of the United States we should demand that all of our rights be protected and preserved, not just the rights of some.

    (Sorry for being so long winded)

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