During last month's SOPA and PROTECT IP Act debates, one thing it appeared all sides could agree on was that the problem of piracy by rogue sites was one worth working on. Over and over we heard from the bills’ opponents that digital theft was a legitimate problem, they were just opposed to the proposed solution. In the past weeks, however, IP skeptics seem to be retreating from this purported common ground, in favor of their more traditional anti-IP views.
In a letter sent to Congress this month, opponents of the now-dead SOPA and PROTECT IP Acts urged against any action on legislation that would address rogue sites, and asked Congress to review the "true extent of online infringement and, as importantly, the economic effects of that activity." In a New York Times article last week, a spokesman for Public Knowledge expressed his skepticism that piracy is really hurting the motion picture industry, saying "we don't think it correlates to the state of the industry" and Tim O'Reilly, another opponent of the legislation, returned to the theory that piracy is actually a good thing, saying: "The losses due to piracy are far outweighed by the benefits of the free flow of information." Public Knowledge continued this theme with an invitation to its supporters to protest against the special 301 process, pursuant to which the US Trade Representative engages in a public examination of information about the IP enforcement and market access practices of trading partners around the world, describing it as "a naughty list of countries who don't do enough to protect American IP", and complaining that the USTR is engaged in an "exercise that arm-twists countries into instituting laws and policies that serve the interests of big content." Ironic, given that during the debates on SOPA and PROTECT IP, Public Knowledge was among those who argued that the U.S. should abandon domestic legislative efforts in favor of international diplomacy to ensure consistent enforcement of American IP rights abroad.
And of course, the ghosts of SOPA and PROTECT IP are apparently lurking behind every corner, from ACTA to the cybersecurity bill and even in Canada's long overdue attempt to implement a Canadian version of the DMCA, which incidentally does not even require site operators or ISPs to take down infringing content when they receive a proper notice from a rights holder, but instead only requires them to pass along information to the alleged infringer.
Curiously, this all comes at a time when the creative community is not pushing any legislation.
The fact of the matter is that individual artists and creators depend on and embrace the internet and it's innovative, legitimate markets. They fundraise through Kickstarter, communicate with fans about new projects through Facebook and Twitter. They spend time and money ensuring their books can be downloaded, and films can be viewed on a number of different platforms. They do this because creators want their fans to have access to their work and they go to great lengths to make their work available in a variety of legitimate formats. Many artists give away samples of their work for free as a means of connecting with their fans and building new ones, but more often than not these artists find their work earning money for pirates who run sites that encourage (and reimburse) uploading content illegally. Artists and creators can, and regularly do, choose to embrace new platforms and business models, but when the first page of hits in an internet search lead fans to foreign rogue sites instead of the artist's site or a legitimate distributor, they might just as well not take the effort and expense to work with new technology platforms. This hurts the artist, and it hurts the entrepreneurs launching new legitimate platforms and services.
Artists and creators deserve a choice in the matter of how their work is distributed. They deserve the ability to monetize traffic to their own sites, and to earn a return from legitimate distributors. They deserve a say in when, how and if they give their work away for free, and they deserve to know that if they do so, the work won't be immediately scooped up by a rogue site and monetized there instead. Bottom line, artists and creators deserve constructive solutions that will foster a safe and legal internet marketplace where creativity can flourish and consumers can continue to enjoy high quality content in ever more accessible formats.
Regardless of the motivations behind this new round of debate, one thing is certain: piracy by rogue sites is real. To move forward, we must move past the blame game rhetoric and agree to address the question we still have in common, “what can be done to make the internet a safe and vibrant place that works for all?”