Thoughts on SOPA and Defending Copyright Online

Don’t get it twisted. The propaganda, scare tactics and fear mongering going on, in regards to SOPA, are no better than anything that the RIAA or any creative rights organization has done. Much of it is marketing, meant to sway people with convincing language.

There are people with bad agendas on both sides of the table.

I’m not pro-SOPA or anti-SOPA. I’m anti-nonsense propaganda, pro-internet and anti-copyright infringement. When I saw all of the noise, I was thinking I would be anti-SOPA, but when you put those three together, I’m not compatible with (seemingly) most of the anti-SOPA efforts that are going on. I just don’t fit in with that crowd.

So, I find myself in the middle. And that seems like a real lonely place right now. Or maybe it’s just the tech echo chamber making it feel that way.

I don’t really want to talk about SOPA as much as I want to share my views on protecting copyright and author rights and what I think needs to happen.

It’s important to understand that nothing will ever be perfect. Any effort to combat copyright infringement will always be loudly criticized by some because some don’t want copyright to exist – or, I should say, meaningful copyright. They don’t mind it existing, just as long as it can’t be easily protected. I’m not saying SOPA would allow for that, either.

Any means of easy protection will also have a margin of error. Everything will. There is an irony in the fact that the DMCA is now heralded by some as a model worth following where the DMCA has always been criticized by some of these same people and, if the DMCA were introduced today, it’d likely face the exact same line of criticism that SOPA does. Of course, some will still tell you how terrible the DMCA is and how it gave corporations all of this power and whatever else.

But, in hindsight, the DMCA was a field leveling act. When I, as an individual with a small amount of money, can go and get pirated copies of my book, blog articles and more taken down from most anywhere with a simple notice, that is a great thing. So, when people tell me that the DMCA is only for big companies, I know they are flatly wrong. They just don’t know the power it affords them to protect their rights.

Of course, there are some DMCA notices filed improperly (there’s that margin of error that will never go away).

That’s also why you have the the counter notice system, which allows people to file a counter notice and say that they have a legal right to share the material. I’ve had an improper notice filed against me with YouTube from Warner Music Group and a quick counter notice took care of it. Expecting perfection is just another way of saying that you don’t want any method at all. People make mistakes and I try to treat others as I myself would appreciate being treated if I made a mistake.

One thing people like to say, about any anti-piracy effort, is that it can get circumvented. Which, again, is like saying that you don’t want any effort at all. No method will be free of circumvention. Piracy will never go away. It existed before the internet. The eradication of piracy isn’t the goal.

Instead, we must do what we can to responsibly reduce piracy. Responsible companies, search engines, online publications, online communities, video sharing sites, file sharing sites and others must be encouraged and rewarded for proactive and responsible management of their platforms and forgiven for abuse that occurs, as long as it is marginal, and not derided for censorship.

When someone posts a long article on one of my communities, I run a Google search for a sentence in the article to see if it has been publicly published elsewhere. If it has and it appears that the poster is not the copyright holder, I remove it and contact the member to let them know and give them the opportunity to explain. I take the responsibility of my platform very seriously (I guess you could say I’m big on censorship).

Many don’t. Many will gladly have an article from an online publication, a link to a pirated copy of my book or something similar on their community for as long as they can get away with it, up to the very second a DMCA notice is filed – if one ever is. They’ll suck as much traffic and money they can possibly get from it. That is wrong. What can we do to stop it?

I do believe that the resources (money, traffic, assets) of rampant infringers, or the worst of the worst, and those that facilitate infringement, not just by hosting it but by actively linking to it and promoting it, should be cut off – no matter who they are. I believe that legitimate companies, including payment processors and ad networks, should not want to do business with these people. Thankfully, many don’t. Many already have a system in place where you can report them.

Head Stead
Creative Commons License photo credit: BozDoz

If someone is making available copyrighted works in massive quantities, without permission, I don’t sympathize with them, even if they are a mom, a senior citizen or a cheerleader.

And with these websites and services, it will always be a “portion” of the site that is infringing. It will never be the entire website. But, if it is a meaningful portion of what they do, then it should be stopped. As an example, if you have a sports forum and you have a section where you allow people to post NFL games up for download or links to pirated streams, you should be stopped. Just because you may also allow perfectly OK discussion of sports on other parts of your forum does not allow you to facilitate copyright infringement.

To take action against them is to, in some way, limit their freedom. But, that is what happens when someone breaks the law, in any context. Their freedom is reduced – sometimes temporarily, sometimes permanently. Massive copyright infringement isn’t some victimless crime. Those guilty of it should have their freedom reduced, just as with anyone who breaks the law.

Please note that I said massive copyright infringement. I’m not talking about someone who shares a few songs. I am not talking about a forum with a few threads on it. I am not talking about a casual infringer. I am talking about someone who has a documented history of infringement or promoting infringement on a wide scale.

Of course, what I would like to see is something that would be criticized by some as “censorship.” But, mainly because people are too quick to use that word. The aim of any law is to censor behavior, if that is how you choose to look at it. There are people who refer to me as Hitler when I remove a post from a community that I manage. Sadly, this is where the discourse seems to be at, in the tech space.

Jonathan Bailey and I reflected on this during a recent episode of the Copyright 2.0 Show. The discourse is so exaggerated, so nasty. People are doing silly things that don’t accurately reflect the real issues. Tumblr censoring their dashboards was a great example of propaganda and paranoia. Such things skew the truth and are distractions to real, practical discussion, pushing people to action on false belief of a doomsday scenario.

I’m not interested in debating these people or arguing with anyone. I have other things to do than to participate in 50,000 word comment threads, exchanging essays with others. Which is why I’m hesitant to offer my thoughts.

I talked with Jonathan about how I didn’t want to even share my thoughts on this issue because of how unpopular they would be in the circles I run in. Me and Jonathan, we share some common positions: we love the internet, we use the internet and consume internet content, our livelihood is tied to the internet, we regularly create content that we capitalize on professionally, we believe in fair use and we believe in author and owner rights.

We wondered if we were doing like minded people (we know you are out there) a disservice by shying away from the topic and keeping our thoughts to ourselves. Maybe we are.

Is SOPA the answer? Perhaps not. But, it is a starting point. There are some things in it that I feel would be worth trying, at the very least. That’s not an endorsement of the entire act. But, whatever act is eventually passed to deal with this issue, I won’t agree with completely. Very few people will, no matter what “side” you consider yourself to be on. There has to be some compromise.

I hope we can enact a solution that protects authors and copyright holders and allows rampant infringement to be more proactively dealt with and punished, something that has actual teeth to it, while also addressing legitimate technological concerns and not getting too sidetracked by excuses meant to delay legislation from ever occurring at all.

Patrick O'Keefe

Managing online communities since 2000, I publish a collective of websites known as the iFroggy Network. I wrote the book Managing Online Forums and, as a public speaker, have presented for organizations like CNN, institutions like Australian National University and conferences like SXSW. More about me.


Eponymous Coward

about 11 years ago

Well said. The rhetoric around SOPA/PIPA/COICA has gotten so heated and out of control that it is now impossible to have reasoned discussion or express legitimate concerns or support for any provisions without immediately getting attacked. It's a shame, because many of the remedies contemplated in the Bills are worthy of serious consideration. Speaking of, as a small, independent copyright owner, I'm curious as to your thoughts on the proposed changes to SOPA, specifically requiring a court order before an ad network or payment provider can be compelled to take action. While this was clearly done to address due process concerns (although I note has been completely rejected as inadequate by opponents... which is ironic considering these are the same critics who always seem to scream about due process in any discussion of graduated response ala HADOPI, and yet reject it when it's provided... but I digress). Does this change to the remedy make it less available and therefore useful to you?


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