The Media Equation: The Danger of an Attack on Piracy Online

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SOPA deals with technical digital issues that may seem to be a sideshow but could become crucial to American media and technology businesses and the people who consume their products. The legislation is the rare broadly bipartisan piece of apple pie. The House Judiciary Committee is expected to resume hearings on it this month and all indications are that it will approve the measure, setting up a vote in the full chamber. The Senate is also expected to vote on its own version of the bill when it returns from the holiday break.

Virtually every traditional media company in the United States loudly and enthusiastically supports SOPA, but that doesn’t mean it’s good for the rest of us. The open consumer Web has been a motor of American innovation and the attempt to curtail some of its excesses could throw sand in the works of a big machine on which we have all come to rely.

Rather than launch into a long-winded argument about why the legislation is a bad idea — it is, as currently written — I thought it might be worthwhile to boil SOPA down into a series of questions.

A NONEXISTENT PROBLEM? Hardly. Regardless of what Web evangelists tell you, SOPA is an effort to get at the very real problem of rogue Web sites — most operating from overseas — offering illicit downloads of movies, music and more. The Motion Picture Association of America cites figures saying that piracy costs the United States $58 billion annually.

Mark Elliot, an executive from the U.S. Chamber of Commerce, said in a letter to The New York Times that such piracy threatened 19 million American jobs. Those figures surely include some politically motivated hyperbole, but anybody who has spent time around a twentysomething consumer knows that piracy is a thorny fact of life for content companies.

In an effort to stanch the flow, on Oct. 26 Representative Lamar Smith, Republican of Texas, introduced the legislation that has come to be known as SOPA. The Senate version, called the Protect IP Act, is seen by tech companies as less onerous because it targets domain name providers and ad networks and not Internet service providers. Both bills seek to create remedies to pirated content because most of the foreign-based sites operate outside of the United States’ legal system.

WOULD IT FIX THE PROBLEM? Probably not, and even if it made some progress toward reining in rogue sites, the collateral damage would be significant. Under the terms of each proposed bill, the federal Department of Justice, as well as copyright holders, could seek a court order against a Web site that illegally hosts copyrighted content and then wall off the site permanently.

Under the House version, private companies would be allowed to sue Internet service providers for hosting content that they say infringes on copyright. That represents a very big change in the current law as codified in the Digital Millennium Copyright Act, which grants immunity to Web sites as long as they act in good faith to take down infringing content upon notification.

WHY ALL THE ALARM? The bill has exposed a growing fracture between technology and entertainment companies. Digitally oriented companies see SOPA as dangerous and potentially destructive to the open Web and a step toward the kind of intrusive Internet regulation that has made China a global villain to citizens of the Web.

Entertainment companies think that technology companies are aiding and abetting thieves on a broad scale, but the legislation is alarming in its reach, potentially creating a blacklist of sites and taking aim at others for unknowingly hosting a small fraction of copyrighted material. In a joint letter to Congress, Google, Facebook, Twitter, AOL, Yahoo, eBay and many other companies made it clear that they perceived a broader threat in the effort to thwart pirate sites.

“We support the bills’ stated goals — providing additional enforcement tools to combat foreign ‘rogue’ Web sites that are dedicated to copyright infringement or counterfeiting,” the letter read, which was published in a full page ad in The Times.

“Unfortunately, the bills as drafted would expose law-abiding U.S. Internet and technology companies to new uncertain liabilities, private rights of action and technology mandates that would require monitoring of Web sites.”

Laurence H. Tribe, the noted First Amendment lawyer, said in an open letter on the Web that SOPA would “undermine the openness and free exchange of information at the heart of the Internet. And it would violate the First Amendment.”

You can see why big Internet guys are upset by SOPA. Maybe you and I should be, too.

E-mail: carr@nytimes.com;

Twitter.com/carr2n

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