The SOPA/PIPA Legislation and You (Featured in the Fall 2012 issue of The Score)

The SOPA/PIPA Legislation and You

Do Anti-pirates get to say ARRRRG, too?

You probably got the emails. Two bills are racing through Congress that threaten your freedom and prosperity! Fight the Blacklist! Sign the Petition! Stop the attack on the First Amendment!! These bills will legalize government censorship!! They will BREAK THE INTERNET!!!!!

And so on. Within a couple of weeks, two seemingly innocuous anti-internet piracy bills called SOPA and PIPA, both introduced with bipartisan support, had become lightning rods for proponents of an "open internet". The ensuing stampede was reminiscent of the thundering herds of the 1870s - only this time instead of buffalo it was tech-savvy internet users followed shortly after by Congress and the White House. But what exactly were SOPA and PIPA? And who was playing the role of Buffalo Bill, firing the virtual shots that began the panic? And why should composers and lyricists care?

The Stop Internet Piracy Act (SOPA), was introduced in the house in 2011 by U.S. Representative Lamar S. Smith (R-TX) and a bipartisan group of 12 initial co-sponsors. Meanwhile, a slightly different Senate version called Protect IP Act (PIPA) was introduced by Senator Patrick Leahy (D-VT) and 11 bipartisan co-sponsors. Both bills addressed the issue of foreign internet sites which allow users to download films, music, books, etc. without payment to the creators of the material. In addition, SOPA had provisions that concerned counterfeit medications. There were also differences in the legal measures each bill would allow to be taken against pirated sites and those hosting them: SOPA took a broader, more draconian approach with fewer safeguards for individual rights while PIPA was generally narrower.

Initially, both bills seemed non-controversial and wended their way through the legislative process uneventfully. Some revisions were made during this process that generally reduced both the scope of the legislation and the policing requirements of those who provided links to the pirate sites. But as public hearings neared, anti-SOPA and PIPA forces began to coalesce. On November 16, 2011, Tumblr, Mozilla, Techdirt, protested by participating in American Censorship Day. Their site logos showed black banners emblazoned with the words "Stop Censorship". Google directed people to an online petition against the bills that collected over 7 million signatures. On January 18, 2012, Wikipedia went "black" - displayed no content - for a day and was joined by 7,000 smaller websites. Instead Wikipedia displayed the slogan Imagine a world without free knowledge. Millions of emails and Facebook posts like the ones that began this article circulated.

Within days the bills were effectively dead. So what stirred up this virtual uprising? Was it a grassroots movement driven by a desire to protect personal liberty? Was it a carefully orchestrated campaign surreptitiously organized by giant tech companies to protect their profits? Was it a victory for "people power" over corporate interests? Was it a catfight between Big Tech and Big Entertainment that Big Tech won? Were the bills grossly misrepresented in public debate, often intentionally? Or were they simply flawed legislation that threatened internet freedom and needed to be rewritten or scrapped? The answer to all of these is, arguably, "yes."

The intent of the bills from the viewpoint of their most visible backers, the major film studios, was simple: reduce the theft and resale of their content by offshore websites. Type in "The Hunger Games" into the search engine of The Pirate Bay (ThePirateBay.se) and you will see free downloads available for the movie, the books, the audio books, the game, and James Newton Howard's score. Although the site does not charge its users, it is supported by advertising revenue thought to be in the millions. None of that goes to the people who produced the movies, wrote the books and games, or made the music. And because it is not a .com site housed in the U.S., the Swedish site is beyond the jurisdiction of U.S. courts.

The effect of this piracy is far-reaching. Not only do studios lose income on individual projects, it changes the actual number of films being produced. In times past, a film could perform poorly at the box office and still make a profit in DVD sales. Cult favorite, Office Space, is a well-known example of this. But because that back-end is no longer assured - largely because of piracy - studios are reducing their slates, often dramatically.

SOPA/PIPA legislation was intended to create new legal tools to combat foreign-based piracy. There were provisions that allowed both individuals and the U.S. attorney general to demand that websites and search engines (like Google) that carried links to pirate sites remove the links or face criminal charges and civil liabilities. The bills varied in specifics, but, in both cases, it probably would have taken many repeated violations after notification before effective legal action could be taken.

Opponents of the bills contended that the bills were so vague and far-reaching that they would cause websites to preemptively remove links that might make them legally vulnerable, even before any complaints were filed. They believed that the system had insufficient measures to prevent abuse by those who might want to shut down a site for reasons that went beyond stolen intellectual property - politics, or business rivalry for example. It would "censor the web." In addition, the technical requirements of filtering out pirate sites would be so onerous that it would "break the internet." (For example, YouTube uses a proprietary filtering protocol that might be prohibitively expensive for smaller sites.)

The Electronic Frontier Foundation (EFF) released a statement saying, "The standard for immunity is incredibly low and the potential for abuse is off the charts." Wikipedia said, "The trust and openness that underlies the entire Wikipedia project would be threatened, and new, restrictive policies would make it harder for us to be open to new contributors." Was there any truth to these fears?

In preparation for this article I read both bills in their entirety. It can charitably be described as one of the most tedious tasks I have ever undertaken. I then called a legal expert - my brother, Elliott Levine, who is a judge, although not in this field. As a favor to me, he read the SOPA legislation (he never got to PIPA) and told me it was difficult to parse even by the normally arcane standards of federal legislation. I later spoke to copyright expert, and friend of the SCL, Jay Cooper Esq., who also felt that, "although it has a valid and necessary purpose", SOPA, in particular, was "possibly over-broad and needed work". However, he pointed out that this was often the case for legislation that was still in committee, saying, "That's why we have revisions and amendments."

In addition, some of the opponents of the bills have agendas that go beyond more palatable ideas like an "open internet." Google, in particular, was an early and vocal critic of the legislation. Some of this may have to do with Google's bruising experience in China, where its failed attempt to balance governmental censorship demands while protecting its user's ability to freely access information ended with it withdrawing in 2010 from that huge and expanding market.

But there is also the fact that Google makes money from pirates. 85% of Google's income comes from ads on its site. When you use Google to search for a pirate site, the accompanying ads generate cash. Consequently, many were skeptical of the purity of Google's motives and doubted the severity of the risks involved with the legislation. Former Sen. Chris Dodd, who is now chairman of the MPAA, called the blackout day a "gimmick." Said Dodd, "It's a dangerous and troubling development when the platforms that serve as gateways to information intentionally skew the facts to incite their users in order to further their corporate interests."

There was also another sub-group of critics who oppose any restrictions on the free distribution of protected material. On January 19, 2012, the U.S. Dept. of Justice seized the domain names and shut down the sites associated with Megaupload, an online company operating out of Hong Kong which distributed illegally copied media. Megaupload founder Kim Dotcom led an opulent lifestyle from the profits of his company including mansions worldwide, racecars, and a luxury yacht. Hacker group Anonymous reacted to the seizure with cyber-attacks on numerous governmental and private sites including the Dept. of Justice, the MPAA, and the RIAA.

The government believed it could do this legally because Megaupload had some assets in U.S. - including some domain names - and because the DOJ coordinated with legal authorities in New Zealand and around the world. (On June 27, a judge in New Zealand ruled the raid "illegal" - the story continues.) The proposed legislation would have simplified some of this enforcement effort, but more specifically would have allowed for the economic strangling of offending sites through court orders on the U.S. ISPs such as income cutoffs, link shut downs, etc.

However, the result of the raid was that it motivated those with concerns about internet freedom to unite with those who simply wanted free stuff. The Pirate Bay went as far as to declare publicly that it was the New Hollywood, comparing its battles with copyright holders to Universal Studios founder Carl Laemmle's fight against the restrictive Edison patents. Of course, they neglected to mention that Laemmle actually made movies rather than simply reselling the work of other people. But The Pirate Bay had successfully managed to cast itself as the scrappy little guy fighting Big Bad Hollywood.

How had the entertainment business - supposedly the masters of image and storytelling - managed to blow it so badly?

Certainly, there was complacency. After all, the bill had bi-partisan support. And maybe there is something to the generation gap aspect of old media vs. new, with the new media partisans far quicker to respond to a changing political landscape. Part of the problem may be the word "pirate" itself. People like pirates - just ask Johnny Depp. SOPA supporter Rep. Ted Deutsch (D Fla.) cited this in a meeting with ASCAP members in LA in February. Deutsch said, "We have to get away from the word 'piracy' and reframe this in terms of lost American jobs."

But the biggest factor may be that before SOPA/PIPA, Big Tech had never flexed its political muscle. In a matter of weeks it turned around a train that had been headed in the opposite direction for a year or more. A sleeping giant had been awakened and it was very pissed off.

Beyond this particular bill, is there some truth to the Big Bad Hollywood stereotype? Composers and lyricists receive no money from studios for internet use and the studios would like to keep it that way. While there may, ultimately, be some PRO monies, and there may be some indirect benefit if the company you are working for makes more money and can produce more product because it loses less to piracy, there is not quite the same motivation as if you were actually getting a piece of the action for your work. As Jay Cooper says, "The always and ever-present issue for composers is whether they will receive their fair share of the money generated by new media."

So what now? Greg Whitehair, a former IP trial-lawyer-turned mediator/arbitrator, points out that “the core problem persists: pirating hurts content providers, and the traditional solutions have failed.” This legislation “had the right goal, but may have used the wrong tools.” He challenges our industry to come up with a better mousetrap declaring, "Someone needs to invent a pro-content, anti-piracy app."

Multi Oscar-winning producer Harvey Weinstein has declared his intention to focus on producing films in France. In an appearance on CBS this morning, Weinstein said, "Two years ago, the French passed a law…that protects artists, writers, painters, filmmakers against these giant internet companies - the law that we, in this country were too chicken to pass…As a result there's been a renaissance in France. DVDs are selling again - people aren't stealing it off the internet. There's money to make movies and these great film producers have come along as a result of this bill and created movies like The Artist and The Intouchables."

Meanwhile, Uber agent, WME co-CEO, Ari Emmanuel, is taking a high-visibility role in trying to strike a deal between Hollywood and Silicon Valley. Emmanuel recently called SOPA “a reflection of Southern California’s arrogance.” He urged Silicon Valley and Hollywood to “step up and collectively resolve this problem,” adding: “Let me know where and when and I’ll be there.” His company is already there - 31% of WME was recently purchased by tech investment giant, Silver Lake Partners.

Would such a deal be a good or bad thing for composers and lyricists? It remains to be seen. We all remember the promise of "the long tail" as a fresh new source of income for artists, bypassing the traditional gatekeepers like record companies. How did that work out for you? Still, if the Hatfield/McCoy-like feud between Tech and 'Wood can be resolved and if artists can achieve the kind of equitable share that Jay Cooper imagines, maybe the internet will prove to be the land of plenty it was once promised to be.

Michael A. Levine is a Los Angeles-based composer. He would like to thank Jay Cooper, Esq., Gregory Whitehair, Esq., and the Honorable Judge Elliott Levine for help in preparing this article. He would also like to blame SCL stalwart Arthur Hamilton for talking him into writing it in the first place.