Wealth of Ideas, March 2012

One of the first and biggest stories in intellectual property news in 2012 was the controversy over two proposed anti-piracy acts known as SOPA and PIPA. From a high-profile start, however, these bills and other anti-piracy legislation have fizzled because of overwhelming opposition from the public.

What happened, and can any one bill protect IP without jeopardizing the freedom (and functioning) of the Internet?

Act I: SOPA and PIPA

These were essentially two versions of the same bill. The Stop Online Piracy Act (SOPA) was the House version, otherwise known as H.R. 3261. The “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011,” or PROTECT IP Act or PIPA (that’s right, the bill goes by an acronym of its acronym) was the Senate version, or S.968.

The bills weren’t exactly the same, but both aimed to curb online piracy. One important difference between the bills was that SOPA included a controversial provision to require search engines like Google to remove “foreign infringing sites” from their search results. What’s more, technical experts warned that the domain name system (DNS) blocking called for in both bills could wreak havoc on the underlying structure of the Internet.

So what happened?

SOPA and PIPA were heavily backed by the motion picture industry, since most of the piracy that goes on in the Internet is the illegal sharing and downloading of movies and music. The tech world didn’t see why their business model (the Internet) had to be compromised in order to protect the intellectual property of Hollywood heavyweights.

And since the Hollywood crowd tends to be more politically liberal and back Democrats, many Republicans in Congress didn’t support the bills – so after all the public outcry and blackouts on Wikipedia and other sites, SOPA and PIPA went nowhere.

Act II: The OPEN Act

Ron Wyden (D-Oregon) introduced the Online Protection and Enforcement of Digital Trade (OPEN) Act in the Senate in December, along with Sens. Maria Cantwell (D-Washington) and Jerry Moran (R-Kansas). In January, on the same day that Wikipedia, WordPress and many other websites held their high-tech blackout, Rep. Darrell Issa (R-California) introduced the OPEN Act in the House as H.R. 3782.

Issa had opposed SOPA, and the OPEN Act was intended to help enforce intellectual property rights without compromising the functioning or the freedom of the Internet. Issa’s bill called for a “follow the money” approach which would require payment processors like PayPal and Visa, as well as online advertisers, to stop doing business with sites that promote piracy.

Perhaps it was too tall of an order, or perhaps lawmakers were sufficiently scared off by the outcry over SOPA and PIPA, that they decided to put a vote on such legislation on hold until after the November elections. Also, although Big Tech backs the OPEN Act, it’s only because the legislation would not impact their way of doing business the way SOPA/PIPA would have.

“It’s not our issue,” said a Silicon Valley lobbyist, who fought SOPA and PIPA, in a blog entry on The Hill. “How to best go about content protection comes from the content guys.”

Apparently, Silicon Valley supported OPEN as a way to draw attention and support away from SOPA and PIPA.

And Hollywood isn’t fired up about OPEN either, because it would not change things enough to significantly protect their copyrighted material: Most of the websites sharing pirated copies of movies or music are illegal anyway, and would not be affected by the legislation.

“No legitimate Internet service should profit from illegal activity or lead its users to illegal sites. The OPEN Act does nothing to stop this behavior and may even make the problem worse,” the Recording Industry Association of America wrote in a letter to Congress in February.

Act III: ACTA

Unlike SOPA, PIPA and the OPEN Act, ACTA – the Anti-Counterfeiting Trade Agreement – is not a piece of legislation in the U.S. Congress, but rather a multinational treaty. ACTA would create a new governing body and international legal system to control counterfeit merchandise, generic medicines and copyright infringement on the Internet.

ACTA has been signed by several countries, including all of the European Union countries. The United States also signed on in October 2011.

In the U.S., some critics of ACTA have dubbed it “SOPA by the back door” because it places similar restrictions on access to online content seen as infringing. Rep. Issa, the sponsor of the OPEN Act, also opposes ACTA and calls it “more dangerous than SOPA.”

“It purports that it does not change existing laws,” he said at January’s World Economic Forum in Davos, Switzerland. “But once implemented, it creates a whole new enforcement system and will virtually tie the hands of Congress to undo it.”

However, the Office of the United States Trade Representative, which signed ACTA, stated that “ACTA is consistent with existing U.S. law, and does not require any change to U.S. law for its implementation in the United States…ACTA is consistent with U.S. copyright, patent, and trademark laws.”

So where does anti-piracy legislation go from here? SOPA, PIPA and OPEN all appear to be stalled indefinitely, probably until after the Presidential and Congressional elections in November. And although ACTA has been signed by at least 31 countries, not one has yet ratified it.

Copyright enforcement is important, but so is free speech and a smoothly-running Internet – and it seems that no one has yet found the answer to protecting all three at once.

To keep up with anti-piracy legislation and other important news stories from the world of IP, visit our IP News Page and our Wealth of Ideas Blog.