We’ve all spent a lot of time this week talking about the House’s Stop Online Piracy Act (SOPA) and the Senate’s Protect IP Act (PIPA). Here’s another one: the Digital Millennium Copyright Act (DMCA) of 1998, which does what SOPA and PIPA aim to do by punishing those who circumvent controls on copyrighted content. Perhaps proponents of SOPA (which we will refer to singularly because it’s the more recognizable of the two) think it’s not being enforced severely enough. Well, that’s not the Internet’s problem.
The websites who blacked themselves out in protest of SOPA may have been the most effective in holding it off. A number of its early sponsors have backed off under pressure, which makes its passage in either chamber more questionable than ever. Rep. Lamar Smith (R-TX), who authored SOPA, isn’t quite so willing to respect public (and, in some cases, corporate) opinion. He contends that SOPA opponents either don’t know what the legislation targets or refuse to learn.
He doesn’t get it. Very few people oppose his intent – on principle, anyway. (My friends and I use The Pirate Bay for our monthly bad movie nights.) They oppose the vagueness of the legislation, which would use court orders to cut off access to foreign sites “dedicated to theft” of copyrighted material. Without an exact definition of “theft” and “dedicated,” a slick intellectual property lawyer could include video sharing sites and social networks under that umbrella.
This may seem like Clintonian logic at first, but it’s really not difficult to figure out the criteria for “theft” and “dedicated”:
- There must be circumvention, meaning the disseminator of the copyrighted material must have used back channels to get it.
- They must have directly profited (and intended to profit) from the material, and/or directly harmed (or intended to harm) the real owner.
- They must have falsely claimed to be the owner of the material, or to have explicit permission from the owner to provide it.
- Fulfilling the primary purpose of the site must entail doing one or a combination of the above three things.
Now if Smith wants us to believe that his version of SOPA already covers all of these things, he’ll have to reiterate it clearly and loudly enough for everyone to notice, because there would obviously have been a communication breakdown in that case. And that seems pretty unlikely, considering we’re talking about opposition in the millions. I’m left to conclude that he didn’t consider those things and will have to go back to the drawing board if he wants this to be taken seriously. A backlash of this magnitude puts the onus squarely on his shoulders.