Protect IP and SOPA Are DOA

The New York Times last Saturday in “Fighting Antipiracy Measure, Hackers Click on Media Chiefs” tells of exposure of top media executive’s personal information on the internet to personalize the fight over ProtectIP and SOPA. Later that day, the White House said what it would and would not support on antipiracy proposals, and the two bills were in the “would not” category. The statement raises serious objections to the bills on censorship and technical grounds. There is a consensus that the bills are dead.

The Obama Administration position was seen as a victory for a loose coalition of internet companies and a defeat for content providers, especially the film industry. Another round in the long piracy battle has ended, but unlike lawsuits against infringers this fight is between two camps of creators who both get protection from the Copyright Act. The push and pull between them has a momentum that will be hard to stop because there is merit on both sides and so much at stake.

Some large and countless small members of the internet community will agree to nothing less than a free and open environment for startups and success stories alike. Anything increasing the censorship burden or fooling with the code is opposed, and they will fight at the drop of a hat. Many players might feel no immediate impact if SOPA became law, but most think the slippery slope is too steep to safely take any more steps.

Music has been stolen from the early days of MP3 files, and it has only gotten worse. Technology developed and stealing movies has been catching up. We know, if not all believe, that people who create and distribute entertainment have been clobbered by piracy. They’ve gotten some help from government law enforcement, but so have the creators of operating systems and apps.

Like tax evasion and speeding, legal enforcement efforts can truly be effective if they create deterrence, but they fail if mindsets remain “everybody does it” or “what’s the big deal?” Wanting government to shoulder more of the burden is easy to understand, and the thought that the federal government is done legislating on copyright infringement is hard to imagine.

The White House statement includes a plea for the internet community and content providers to work together on solutions for piracy. It received little attention. Comments since Saturday mostly are about who won, who lost, and what kind of proposal might be next. But the wisdom of working together can’t be seriously questioned.

If creative people on both sides overcome the barriers and do that, we’ll all be wealthier. With congressional and presidential election season underway, working together is also the only obvious hope for a new law in 2012. If the pitched battle spills into another set of bills seen as favoring one side over the other, it will likely take Congress more than a year to seriously consider them. What’s the price tag on that?

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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