SOPA could do more harm than good

Just once I'd like to be able to write a column without having to vent about some new controversial internet regulation aimed at protecting intellectual property that could end up doing more harm than good.

Not this month. Sorry.

This time, it's the Stop Online Piracy Act (SOPA), also known as the Protect IP Act, a law being debated in the US Congress as we went to press that is ostensibly aimed at non-US websites engaging in copyright infringement of US intellectual property (to include selling counterfeit drugs) but - rather typically for these sorts of laws - written so badly that it covers a lot more than its intended target.

What's striking about SOPA is that much of it proposes powers that copyright holders have tried to attain through similar legislation for years, such as forcing the removal of blacklisted websites from search results, and forcing ISPs to stop rendering the DNS of such a site, a move that many people who understand how the internet works have said repeatedly is a terrible idea.

Where the proof?

Another similarity to previous bills is that the language is amazingly vague as to what websites qualify for prosecution under SOPA. Essentially, it applies to any website (or just a portion of it, even if it's just one page) directed toward the US that is alleged to "engage in, enable or facilitate" infringement, and/or the website owner is alleged to have taken steps to "avoid confirming a high probability" of infringement.

Critics of the bill say that criteria could just as easily be applied to legal file-sharing sites like RapidShare and digital locker services like Dropbox, as well as user-generated content services like YouTube and Soundcloud, and in fact any social networking site whose users so much as share a link to an allegedly infringing site or page. Little wonder web companies like eBay, Facebook, Google, LinkedIn, Mozilla, Twitter and Yahoo officially oppose SOPA.

Also like previous anti-piracy bills, most of this would happen with little or no judicial supervision at all. If a media company thinks your site fits the above criteria, an allegation (as opposed to proof) is all it takes to run afoul of SOPA.

SOPA does contain at least one relatively new twist: the ability of rights holders to cut off funding for offending sites by forcing advertisers and transaction companies (such as PayPal, Visa and MasterCard) to stop processing payments for them.

Still, so much of SOPA sounds so familiar that it's getting harder to believe claims by major media companies that they've embraced the digital content business model. Maybe individual executives get it, or even individual media companies. But at the macro level, by which I mean at the level of industry organizations like the MPAA and IFPI, I'm not so sure they do.

That's not to say that they see no future in digital content. In fact, some insiders have recently predicted that media companies will start phasing out physical formats like DVDs and CDs within the next few years in favor of streaming and downloads now that they know users will pay for it.

But legislation like SOPA strongly suggests that media companies would much rather embrace digital if they can do it with the same (or even bigger) levels of control and legal copyright power they had with physical media, as well as unprecedented power over how customers consume it.

None of this is to say copyright holders should have no legal recourse for infringement violations. But sledgehammer solutions like SOPA not only won't solve the piracy problem (there are always workarounds), but could also hinder innovation at a time when the comms/IT industry is moving to a broadband-driven cloud paradigm top-loaded with opportunity for everyone in the digital content value chain, particularly copyright holders. It's been web-based innovation that has largely shaped the digital media market as we know it - it makes no sense to stop that innovation in its tracks now.