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SOPA and PIPA: A Couple of Better Solutions

I'm guessing that by now you've heard of the latest idea from the comedy troupe that brought us The Alien and Sedition Acts, The Fugitive Slave Act, and Prohibition. I'm talking, of course, about Congress's proposed SOPA and PIPA anti-piracy acts -- but don't run away. Although the bills have been shelved for now, we're sure to hear more about them in the future. And honestly, this isn't just another SOPA/PIPA rant -- I think I've got another spin on it. If you've been reading my take on intellectual property (IP) for the past few years, I think you'll be surprised at why I think SOPA and PIPA are bad ideas even though their goal is to protect IP like mine. Oh, and one more thing . . . I'm even going to offer what I hope are a couple of useful possible solutions.

First, let's review the stakes in this game. Very briefly -- there are tons of places on the Internet that have covered this -- the US movie industry, which is represented by the Motion Picture Association of America (MPAA), is losing money because people are stealing copies of movies over the Internet and, worse, the servers that serve out these illegal movie copies aren't in the US, making it difficult to get to the people who run those servers. Given that the US movie industry isn't all that large -- its $10 billion gross represents no more than 0.07 percent of US economic activity -- you'd think that Congress wouldn't have the time or interest to get involved. However, the MPAA chooses its presidents wisely, tapping former USDA secretary and Kansas congressman Dan Glickman in 2004 and, just last year, then-outgoing Connecticut senator Chris Dodd. Which is how we've gotten to where we are now.

Because offshore servers are essentially untouchable, Congress's workaround was to shut down any US-based web server even unintentionally involved in movie theft. For example, I run an online forum with nearly 10,000 members on my website at If some random bozo joins my forum solely to post a link to one of those offshore criminal movie download sites, then the prospective laws take a sort of "shoot first and ask questions later" approach, enabling the movie folks to get my entire domain shut down quickly, and in a number of ways. (I apologize for being a bit vague, but, again, you can easily find many lengthy explanations of the laws, so I'm keeping this short for the sake of space.) Thus, to avoid being put out of business, I'd have to either hire someone to watch my online forum 24 hours a day to look for and delete any such posts, or dismantle my online community, which has been running for 10 years.

In another example, think of the literally hundreds of millions of pages on Facebook and try to imagine how many people Facebook would need to keep from getting shut down, and you get an idea of how expensive the law could be. Taken further, consider all the places where websites' visitors interact with those site's pages -- online forums, comments that can be made to blog posts, "guest book" pages, and the like -- and basically SOPA/PIPA would have made all of what we think of as the "Web 2.0" stuff impractical. Many people think it'd have a chilling effect on the Internet's growth and usefulness, and I wholeheartedly agree.

Is protecting the movie industry's intellectual property a good idea? Absolutely. As a guy who pays the bills with income that comes largely from IP-related products, piracy drives me insane, and the authorities' response to IP theft often seems weak and ineffectual. Heck -- left to my own devices, I'd burn the thieves' houses to the ground, salt the earth upon which the houses formerly stood, and . . . well, maybe that's why I shouldn't be the guy to call the shots on how to deal with IP thieves, and maybe that's why the MPAA shouldn't hire ex-politicians to convince their erstwhile colleagues to write this overkill-ing bill.

To restate what I hope is an obvious fact, the Internet is an amazing achievement -- and there isn't a scintilla of hyperbole in that statement. Of all the things that those of us in the computing/networking field have accomplished -- computers so cheap that private individuals can afford them, man/machine interfaces that involve not just text and keyboards but high-resolution graphics and touch-based screen interaction, cheap or free programming platforms that allow almost anyone to create their own applications -- nothing even comes close to the value and effect of the Internet. It melts borders. It makes nearly every place on Earth under a sub-second's distance away. Saying that the Internet has enabled me to make friends -- some of whom I number amongst my closest friends -- on several continents, is so pathetically quotidian as to be trite when said in 2012, but that doesn't take away the bare fact that it's true. (And I bet that nearly every one of you reading this can make the same statement.)

Of course, not everyone likes the Internet's span and accessibility. There are some countries whose totalitarian leaders' need to control their subjects is so great that they fear and even hate the Internet -- and quite honestly, that feeling is a wise and well-justified one for them, because one of the Internet's greatest (and unintended) accomplishments has been to act as a powerful tool. We've seen it used around the world as a lever allowing downtrodden people to uproot and expunge their jailors. Odd as it sounds, the initially-created-by-the-American-government Internet might have freed more oppressed people in the past 15 or so years than any arm of the US government in that time. The Internet might well be one of the greatest things that we Americans have ever created. Perhaps, then, we who profess to love freedom so much should move a bit carefully before gelding the Internet just for the convenience of those who create fantasies about love, victory, and, well, freedom, shouldn't we?

So what's the answer? I can think of two that are, I think, justifiable: Do nothing, or develop a better distribution technology.

One answer is to do nothing. No new laws, and in particular not SOPA/PIPA or anything else with a one-touch-is-mortal-poison aspect. I don't think it's unreasonable to say that a law that terrorizes people into shutting down innocent web services, such as forums, is terrorism -- and although some governments might sponsor terrorism, I sure hope that mine doesn't.

As everyone reading this knows, the Internet did another wonderful thing: It enabled e-commerce. I can actually run a world-wide intellectual property-oriented business myself, without the need for a brick-and-mortar store, a large staff, or ruinously expensive marketing services. That would be flatly impossible without that border-melting, sub-second Internet. The Internet has saved me money, and it has saved the MPAA money as well. People who run brick-and-mortar stores know that they're going to suffer a certain amount of shoplifting -- they hate it, but it's inevitable. As I said, it happens to me too, and I hate it. But would I want to run my business in a world without a free Internet? Heck no -- I did that in the 1980s and early 1990s, and only a fool would wax nostalgic about what we had to do to sell things then. Every business suffers unfair losses, whether from the odd lazy employee or the light-fingered thief. We hate it, but it's an unfortunate cost of doing business. Man up, MPAA. Remind me how many big studios closed their doors last year from massive piracy-related losses? Oh, yeah . . . none. If you want to save money, put Michael Bay on a special effects diet. Didn't I hear that they shot Casablanca in 15 days?

Furthermore, I've seen that pirates might not be the only bad actors in the intellectual property world. As e-books have become more popular, I'm surprised at the prices that publishers are forcing Amazon, Barnes & Noble, and Apple to charge for their books. When I was in college, a terrific-looking book, a reference book that I truly wanted in my library, might come out in hardcover for, say, $25. That seemed too much for my budget, but in time it might reappear in trade paperback format for, say, $11 . . . still a lot of money for someone on an assistantship. Wait a bit longer, and it'd arrive in mass-market paperback for $4.50, and then I'd finally buy it. Thus, it's confusing to visit Amazon's Kindle store with the intention of buying a book that's currently available in trade paperback for $11 and hardcover for $25, only to find that the e-book version will cost, say, $13. Under the price in italic text is the message, "This price was set by the publisher." Given that an e-book is clearly a bit cheaper to distribute than a mass-market paperback (I've been in the publishing business, and it's truly only a bit cheaper; much more of what you pay for a book goes to people than to pulp, and trust me, you really need all of those people -- you should see my writing before my editors get to it! [Editor's note: Seriously!]), why would a publisher charge more for an e-book than a physical book? The only answer that I can come up with is, "because they can." Clearly this publisher thinks that (1) the demand for e-books is so great and (2) the digital rights management (DRM)* that keeps people from stealing the book is so reliable that the publisher can pocket a bit extra -- and so the disturbing conclusion is that when a publisher feels that it's got us readers in a corner, it'll try to squeeze us.

Unfortunately, history bears this out: When, in its early years, Macy's department store sold books at a deep discount in an effort to get people into the store, publishers directed them not to, wanting to keep book prices high. Macy's ignored them, and the publishers responded by refusing to sell books to Macy's. The publishers and Macy's sued each other over the issue, and 99 years ago, the Supreme Court found in Macy's favor. Now, don't misunderstand me, I'm not condoning piracy by any means, but I wonder if the publisher would be price gouging if it thought that a book might be widely pirated? (And in case you're wondering, as far as I know, every e-book DRM scheme has been cracked at some point, but for some reason we readers are apparently far less likely to pirate e-books than e-music. I have no idea why.)

Ultimately, I suspect that the best answer for the MPAA is to take the money that it's been spending to wine and dine various Congresscritters and put that money into research on an effective, fair, unobtrusive technology for protecting online movies, books, and the like from theft. Let me buy an electronic work in a manner that will be useful even if the vendor from whom I purchased it (Amazon, B&N, or whomever) goes out of business. Let me lend that book, movie, or whatever to a friend, providing a way within the technology to deny me the ability to use the work until my friend returns it to me. Let me sell the work when I'm done with it, making it impossible for me to keep a copy for myself. In short, give me the electronic equivalent of what I get when I buy a book or a DVD today, at a reasonably equivalent price. I can't see how anyone would object to this, or that any reasonable person would feel justified in pirating such a product.

We won this round, but you know it ain't over. Keep your ear to the ground, and let your representatives know that terrorizing the Internet isn't going to fly with you or any other constituent!

*Digital rights management (DRM) is how a movie studio can sell you a movie on a Blu-ray disk without you being able to copy the disk and give that copy to your friends, or the way an e-book seller such as Amazon can sell you a file that's readable on your Kindle reader but nobody else's. DRM basically works by encrypting the movie, book, or whatever, and it only works if that encryption can't be broken.
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