You Say SOPA, I Say Soupa

I recently had a very pleasant conversation about the death of the Stop Online Piracy Act (SOPA). On the other side of the table (quite literally) was a record company exec: a charming and intelligent man with whom it was great fun to converse.

SOPA (and its sister, PIPA), faced some stiff opposition from the Web community, and ultimately failed. My dinner companion saw this as a shame, and felt that the reason it failed was what the factual disconnect between the actual content of the Act and the claims being made against it by Google, Wikipedia, Facebook, others in the Web-community – and me (at least at dinner).

His position on SOPA, quite predictably, was that combating flagrant mass thieving of intellectual property on the Internet, as often perpetrated from foreign-based websites, required a coordinated strategy that SOPA delivered. As he saw it, SOPA only regulated foreign sites engaged in unlawful activity. (SOPA proposed to do this, in case you don’t already know, by cutting off the flow of revenue from US-based advertisers and by preventing US-based payment processors from conducting business with such foreign sites until they’ve proven themselves to be non-infringing. The Act contains a penalty for seeking such relief where there is no basis for the allegation.)

The argument against SOPA has always been that it imposes regulations on all Internet sites (legitimate and non-) that will stall innovation and curtail the flow of information. The opposition to SOPA is that putative copyright owners could use the law recklessly (or even maliciously), and that such conduct would unnecessarily impede and harm legitimate sites – possibly to the point of cyber-death. The fear has also been that the Act was a big step towards government censorship, although I admit that that’s a bit of the-sky-is-falling-ness that I never really bought into. Also admittedly, I only read the October version of the Act. It was long and rambling and circular enough that I never went back to read the sequel. Still, I get the objective. I’m a content creator, an artist by nature, and fully believe in protecting a creator’s intellectual property rights. I even think SOPA and PIPA asked the right questions; I just think they came to the wrong answer.

Moreover, and in defense of my position, doesn’t the recent legal shuttering of Megaupload prove that the current law worked sufficiently? And it the law worked to close down a alleged infringer like Megaupload, who was to say the system was broken? Hey, if it ain’t broke, don’t SOPA.

No doubt a new bill will come in to fill the SOPA/PIPA void. I’m all in favor of one that prevents an erosion of content-creators’ fundamental rights, but believe that it must contain sufficiently flexible language to strike a balance between the rights and interests of the content creator, the pipeline creator and the general public. Isn’t that fair? Isn’t it in everyone’s interest that safeguards for all concerned be preserved? I think so. And certainly, preventing theft benefits all concerned, but the prevention has to be done intelligently and without creating even more problems.

To reach across disciplines and borrow (generally/paraphrasing) from the Hippocratic Oath, legislation like SOPA that aims to solve the problem of infringers who profit from the distribution of illegal content must first insure that it does no harm to the patient it is attempting to cure.



Jonathan Pink is an intellectual property attorney resident in the Los Angeles and Irvine office of Bryan Cave, LLP. He can be reached at jonathan.pink@bryancave.com.