SOPA is not the answer to piracy

Ordinary people’s livelihoods need protecting from copyright theft somehow – but SOPA is too high a price to pay.

Apologies to software testing blog entry fans, but this week it’s another generic IT-related post. This can’t wait because, as you may have noticed, there was a blackout of several websites last week, most prominently Wikipedia. This was in protest over the Stop Online Piracy Act  (SOPA) going through the US House of Representatives, and although this is only a US law, like software patents it stands to affect the UK. The participation of Wikipedia has suddenly brought this issue into the spotlight, with pro-piracy activists, pro-control record companies and all sorts of people in between giving their points of view.

Let me be absolutely clear: I have no time for pirates, especially not those who run websites like The Pirate Bay. They are not noble crusaders selflessly standing up for internet freedom – they are big businesses who make a packet from advertising and subscriptions without the tedium of sharing the proceeds with anyone who made the stuff in the first place. Yes, the music industry has survived home taping, CD copying and bootleg market stalls, but file-sharing makes the practice much easier, so the issue must be taken seriously. I couldn’t care less if Jay-Z or the chairman of Sony-BMG can’t afford an extra Mercedes, but they aren’t the real victims. And I’m not talking about the people who work in the music industry (although this is a valid point the record companies make), but the small-time artists struggling to make a living.

I am fortunate. My own small-time artistry is play writing and directing. I have willingly put in a lot of time into theatre for nothing, but I would not have been able to use various theatres for free without the money they get from ticket sales. I have little to fear from online piracy because you can’t copy a theatre visit online, but musicians, authors and computer programmers aren’t so lucky. One of the favourite pro-piracy arguments is that it benefits small-time musicians by promoting their work, but reality does not back this up. In Sweden, where there is the strongest culture of piracy, any musicians who complain about loss of earnings are vilified for not sharing the Pirate Party’s views of what’s best for them. An obvious point is that musicians tend to promote themselves through samples on MySpace or YouTube rather an online free-for-all, but this too falls on deaf ears. My view is that all these arguments about supporting music aren’t reasons for piracy, they are simply excuses.

But the stance of the big record companies does small-time artists no favours. Of course they have to protect their sources of income, but the arguments they use are blatantly geared towards maximising profits first and protecting creativity a long way second. When Prince chose to release an album for free - surely no-one can object to a millionaire pop star giving something away at his own expense? - the record companies were outraged. Half the time, anti-piracy technology seems to have little to do with anti-piracy and plenty to do with restricting how you may use your own products, from unskippable adverts on DVDs through to some highly suspect restrictions on Blu-Ray. Until the RIAA backed down, the RIAA resorted to mass lawsuits against people who may or may not have illegally uploaded material based on questionable evidence and scary lawyers. Copyright laws, like most laws, work best when people have confidence in them, and so far the record companies are failing miserably.

This bludgeoning approach is a large part of the problem with SOPA – although, to be fair, it’s largely the big-time pirates’ fault this was considered in the first place. Pirates evade the law either by claiming their operations are out of reach of the law by locating their servers in Belize, or claiming that their site’s Not For Use By Copyright Infringers (Honest). The latter category is the big problem. Countless sites rely on content uploaded or shared by users, from Limewire and old-style Napster to YouTube to Wikipedia, plus Facebook, Twitter and pretty much any site that allows users to post comments such as this blog. What they all have in common is that there’s no way foolproof way of ensuring uploaded material isn’t someone else’s work. Beyond that the similarity ends: the Newzbins of the world turn a blind eye, and sites such as Wikipedia diligently police themselves. The question is: how, in the eyes of the law, do you tell one from the other?

SOPA’s answer is, at best, vague. And vague laws are dangerous, because that places power in the hands of those with the most expensive legal teams. We’ve already seen US software patent laws used almost exclusively by big companies to keep small companies out of the market and extract money from big competitors, and for all we know SOPA could go the same way. Could a company who cares little about piracy but disapproves of Wikipedia try to put them out of business? Could they claim the upload mechanism "might" be used for piracy? It might seem a ridiculous scenario, but there’s little to assure us this couldn’t happen. It’s little wonder sites like Wikipedia are up in arms about this, and yet the big record companies still see their opposition irresponsible pro-piracy.

There are plenty of other possible solutions. I’d take a good look at Wikipedia founder Jimmy Wales’s idea of going after the money rather than the uploaders. I’ll bet that if you take money out of the equation, people running sites like The Pirate Bay will suddenly forget their ideological commitment to “sharing”.  Websites can work with the copyright holders; almost all music videos streamed for free on YouTube now are done with the copyright holders’ blessing, either for a share of advertising revenue or just promotion of the song. Existing laws are getting quite good at telling the difference between bona fide content sharing sites, and piracy sites masquerading as legitimate ones. All of these possibilities could and should be considered before resorting to handing poorly-specified powers to unspecified individuals.

However much idealists want to believe otherwise, the music and film industries are not sustainable in a world where payment is voluntary for everyone, but this is what we will get if the big record labels carry on behaving like they own the internet. At the time of writing, SOPA's passage through Congress has been suspended – whether this really means the end of SOPA as we know it is unclear. But I hope this will be used as an opportunity to go back to the drawing board and think about what really matters. It may take many more attempts to get the balance right, but if we stick with this, it will be worth it in the end.