October 26th 2011 – The United States House of Representatives is introduced to a bill with the not-so-catchy and seemingly harmless name H.R.3261, immediately referred to as the Stop Online Piracy Act. It was introduced by the Texas congressman Lamar Smith, a 64 year old Christian Scientist and Republican, who also is a practising lawyer.

It should have come as little surprise. In 2006 Smith had ignored numerous requests to scale back the Digital Millennium Copyright Act, and had gone ahead to push through far sterner amendments with the backing of the Bush administration and major copyright holders such as the Recording Industry Association of America. The proposed changes seemed to have little cohesive plan in their attempts to prevent piracy, although they did increase sentencing – it suggested that it become a federal crime for simply attempting piracy, with sentences for up to ten years in prison even if the piracy attempt failed – and also permitted wiretapping in copyright related crimes.

Lamar Smith, the brainchild behind the bill

Smith’s stance on major political issues are classically Republican. He wants restrictions on abortion, wants greater homeland security (policies he actively influences with his seat on the Committee on Homeland Security) and abused his position as Chairman of the House Committee on the Judiciary to famously refuse to even listen to a bill that proposed an end to federal prohibition of marijuana. This, while accepting huge campaign donations from the Beer, Wine and Liquor lobby, who sit prominently among his supporters, which also now include companies that distribute digital content.

At first reaction to the bill was fairly muted. The title made it seem inoffensive and the constant bleating of music and film companies about their “record losses”, despite numerous studies that suggested those who engaged in the illegal activity of file sharing were more likely to spend more on the type of medium they “pirated”. You would only have to look at the figures that were verified after the music industry had taken its first big scalp in this ongoing battle of copyright, namely Napster. During the time that service was operational in a fashion that was later deemed to be illegally, between 1998 and 2001, sales of the humble compact disc actually increased to the tune of $500 million. This statistic is often glossed over in favour of more melodramatic ones such as the US movie industry losing $25 billion to piracy. Of course, the source for that statistic is the Motion Picture Association of America, supporters of both the SOPA bill and the previous DMCA.

There has undoubtedly been a downturn in the direct profits of music sales and movie revenue from the box office and home DVD sales. Piracy has undoubtedly played a part in this. Yet just how big or how small doesn’t really seem to be accurately assessed by any reputable source. Cinema-goers in the US in 2010 hit a record low since 1996. While people point the finger at piracy, there are always global factors to consider. For example, you’d have to have been hiding under a rock, with your eyes gouged out, and knitting needles pushed into your ears, to not have heard about the matter of the recent global recession. In 1996, while the US economy was performing reasonably well and posted growth, there were huge advances made in the digital entertainment industry, which saw people elect to spend their leisure time in other ways. No-one attributed that lull to anything illegal, just good old fashioned choice. The economic growth was also contributed to by the rise of internet based companies, the same sort of companies that would be directly harmed by SOPA.

No surprises to see the likes of Disney supporting the bill


That perfect storm of circumstance seems to have loaned weight to the bill nut as it was closely looked at and picked apart more and more it was clear that not only would anyone who used the internet be affected, it would also have negative impacts on many of the internet based businesses it was claiming to assist. In short, it is a bill, like so many others in America, that is aimed squarely at big business and here’s why…

Bill Summary

The introductory Bill Summary, which you can see for yourself here reads the following:

Stop Online Piracy Act - Authorizes the Attorney General (AG) to seek a court order against a U.S.-directed foreign Internet site committing or facilitating online piracy to require the owner, operator, or domain name registrant, or the site or domain name itself if such persons are unable to be found, to cease and desist further activities constituting specified intellectual property offenses under the federal criminal code including criminal copyright infringement, unauthorized fixation and trafficking of sound recordings or videos of live musical performances, the recording of exhibited motion pictures, or trafficking in counterfeit labels, goods, or services.

The rest of the summary seems equally harmless, wrapped up in the sort of legal language that would make anyone feel comfortable with it. As with all things though, the devil is in the details and closer inspection of the bill reveals some fairly insidious practicalities. These include:

– Making hosts legally liable for any copyright infringements, no matter how seemingly trivial, of users. This could extend to an entire website being shut down on the basis of one user failing to comply to existing copyright legislature.

– Creating a legal process that could allow a named copyright holder to prevent payment network providers such as VISA, or internet advertising services such as Google Ads, to stop doing business with a website guilty of any alleged copyright infringement.

– Incorporates the S.978 Bill, which includes public performance of copyrighted material. Theoretically this extends to Youtube users uploading cover versions of songs of their favourite artists.

– Will force search engines, service providers, payment networks and advertising networks to comply with court orders issued by the Attorney General to “block” any sites deemed to have infringed copyright as outlined in this and existing legislature.

= Can force the removal of certain domain names, make them blacklisted and not useable either permanently or until some other agreement has been complied with, as ruled by the courts.

– Makes streaming of copyrighted content an offence punishable by up to five years in prison.

There are many other shocking implications and already we have seen attempts to act as if the bill has already passed by some of the large companies that would benefit from the bill. However, what isn’t receiving as much mainstream coverage is the number of large companies that actively oppose the bill despite operating in an industry that has its profits eaten into by piracy. If it was a cut and dry issue, surely these examples would be few and far between.

Businesses Opposing SOPA

There are several notable examples of companies that will not lend their support to the SOPA bill publicly. You can see a complete list of those who do support the bill here. The cynical will point to this being a simple issue of appreciating the sensibilities of their key demographic, that they can’t been seen to support a bill that may cause action such as a boycott or a rethink of use of services. Yet the names that do not support the bill would probably surprise more than a few.

Mario doesn't seem to be a supporter of the bill

Nintendo, Electronic Arts and Sony Electronics have all wanted it made clear that they do not support the SOPA bill, despite having earlier been keen on a revision of the existing legislature. Internet debate about whether they at one time did or didn’t support the bill has generated pages of discussion, yet at no point have they been included in the supporters list. There’s been no official response from any company about their feelings towards the bill other than Electronic Arts telling Joystiq “EA never expressed a position for or against SOPA”, yet their absence from the list of supporters speaks volumes.

They are not alone in the gaming industry. Valve, the owners of the largest digital distribution platform Steam, have a lot to lose if internet game piracy goes unchecked. They themselves, while having steered clear of directly commenting on the SOPA bill, have made their views on piracy clear for some time now. In a recent interview with The Cambridge Student the head of the company, Gabe Newell, was open in his views that those who try and oppose piracy possess a lot of misconceptions about the best way to do that:

In general, we think there is a fundamental misconception about piracy. Piracy is almost always a service problem and not a pricing problem. For example, if a pirate offers a product anywhere in the world, 24 x 7, purchasable from the convenience of your personal computer, and the legal provider says the product is region-locked, will come to your country 3 months after the US release, and can only be purchased at a brick and mortar store, then the pirate's service is more valuable. Most DRM solutions diminish the value of the product by either directly restricting a customers use or by creating uncertainty.

Our goal is to create greater service value than pirates, and this has been successful enough for us that piracy is basically a non-issue for our company. For example, prior to entering the Russian market, we were told that Russia was a waste of time because everyone would pirate our products. Russia is now about to become our largest market in Europe.

Gabe Newell believes that preventing piracy comes down to the comapnies providing the service

It shows that there are ways to combat the issues of piracy that place the onus on the companies and there are numerous examples that support the argument that piracy is a service, or business model, related issue. It is interesting to note the lack of computer game companies, even major ones, that support the bill. Equally in the world of music those who have embraced the internet and the means it provides a distributor have more often than not flourished on the basis that they offer the same, if not better, service than traditional distributors at an often reduced price. Equally artists support these methods because they make more money through digital and direct distribution as less corporate middle-men take exorbitant cuts.

In the same way that distributors and producers might want to protect their content it would also stand to reason that musicians would have a problem with the pirates. We’ve seen numerous lawsuits and long running legal battles between platinum selling artists and those that they perceive to be stealing from them in the past, the blueprint for which was the landmark Metallica Versus Naspter case. Is it conceivable then that musicians would be opposed to the bill and would come out in support of sites that are deemed to be “rogue” under the terms of the bill?

That’s what happened with MegaUpload and MegaVideo who were singled out as being a company that cost American industries money and jobs, in particular in a “documentary” issued by Creative America (http://vimeo.com/32592166). It didn’t take long for a host of American musicians, featuring P. Diddy, Snoop Dogg, Kanye West, Alicia Keys and Jamie Foxx, to come out in support of the file-sharing website. Interestingly enough several of the artists are signed to labels that are owned by companies who support the bill such as Universal.

When the artists released a song – entitled the Mega Song – to show their solidarity in supporting Mega, not long after it had been uploaded to Youtube Universal demanded that it be removed on the grounds that it somehow infringed copyright. Despite going through it with a fine-tooth comb nobody could find any example of what this “copyrighted material” might be. Simply, it looked like a corporation getting agitated over talent it perceives that it owns and trying to flex its corporate muscles. The demand for it to be taken down was completely without foundation.

The Electronic Frontier Foundation made the point that had immediately occurred to everyone who had seen the story at the time. Their Intellectual Property Director, Corynne McSherry, said “This appears to be yet another example of the kind of takedown abuse we’ve seen under existing law — and another reason why Congress should soundly reject the broad new powers contemplated in the Internet Blacklist Bills, aka SOPA/PIPA. If IP rightholders can’t be trusted to use the tools already at their disposal — and they can’t — we shouldn’t be giving them new ways to stifle online speech and creativity.”

The idea that this is an all encompassing bill that is supported by entire industries is completely not accurate, no matter what those supporting the bill would have you believe. Indeed it doesn’t seem clear that those supporting

Big Business And The Not So Hidden Agenda

It is no coincidence that there is a clear divide between those companies and creative minds that are opposed to the bill and those that aren’t. It can pretty much be divided into those on the one hand those who have made the best use of the internet and taken innovative approaches to the way things are done and those who have their livelihoods invested in traditional methods of distributing media. This is why the creators of a digital distribution platform who work in an internet based industry are fully opposed to it and those who work for companies that sell CDs and DVDs are not. They missed the boat in terms of development, sticking to traditional methods believing that bubble would never burst, and are now feeling the penalty for it. As such they see the internet as something that takes from their pockets and blame the pirates for that. The reality is the internet has been taking out of their pockets through legitimate means and they’ve tried to fight that too.

Had SOPA been enacted at the start of the internet's growth, companies like Google would not exist

Whenever a company seems to find a way to have an innovative approach to the distribution of media, the big businesses are immediately opposed to it. Whether it’s the afore mentioned Napster, whether it’s the initial resistance to products such as mp3 players or even the humble video recorder, the big companies panic and think that they are going to be robbed wholesale. Every time they have been wrong and every time, once they have calmed down, they have found ways to milk profit from the new technologies.

Interestingly enough had SOPA style legislation come in earlier, or had previous attempts to shut down home recording and playback technology by the RIAA and other such large groups have been successful, companies such as Microsoft, Apple and Google would never have achieved a fraction of the success they had. It’s entirely conceivable they wouldn’t exist at all. Of course, while the average member of the public wouldn’t benefit from it, while the people who work in related industries wouldn’t benefit, while the often celebrated access to simple technology and information wouldn’t exist at all, the companies that are supporting SOPA would be completely unaffected.

They could still sell you overpriced CDs that are manufactured in sweatshops for pennies, or DVDs that have a production method that directly mirrors those of market-stall pirates, simply on a bigger scale and with bigger mark-ups (the fact they own the copyright seemingly makes such unethical practices legitimate) and you wouldn’t be any the wiser about possible alternatives. Nor would you be able to argue that digital distribution is more environmentally conscious when year after year unwanted CDs and DVDs, usually used for commercial purposes, clog up landfills the world over.

The bill serves as an artificial way of preserving antiquated methods of distributing media and gives more time to those businesses that didn’t move with the times as they were unfolding. It’s best described as no consequence capitalism. Where the basic principles of capitalism thrive on competition and the execution of well thought out ideas at the right time, equally the companies that haven’t do this can buy themselves more time to do so while shutting down the competition, both legal and illegal. By making sites responsible for their users you can ensure anyone that erodes profits in even the most tenuous sense can be punished to full, while in the meantime allowing the companies some free time to catch up to what everyone else was working on years ago.

While most people would agree that protecting intellectual property is something that does indeed concern everybody, the fact that the bill is worded in such a way that it effectively gives the power to anyone with a copyright complaint to shut down the company, regardless of how that copyright was actually broken, shows that there are far darker intentions than simply protecting what these companies own.

SOPA And E-sports

As a fledgling industry the ways in which SOPA could impact on e-sports are numerous. We did seem to be moving into a golden age of making content available to the masses and this saturation increases the amount of people who become e-sports aware. The costs involved of this “bedroom broadcasting” have been greatly reduced thanks to services such as Own3d and Twitch TV. If one user was to violate the copyright regulations outlined in SOPA, which are far more subjective than those previous and seem to mostly ignore such concepts as “fair use”, the whole service could be shut down. This in itself presuming that copyright claims wouldn’t come in from the creators of the titles if they ever wanted to create a premium service or broadcasting monopoly.

Marcus "DJWheat" Graham, the e-sports face of Twitch TV

Content that is uploaded to streaming services too could find itself thin on the ground. Frag movies that use parts of songs, even if fully referenced, could get something like Vimeo closed down and the creators prosecuted. This could even be applied retroactively to movies that are already in circulation if they were to be re-uploaded, something that renders a large part of e-sports history potentially illegal.

E-sports is unique from other business models in the sense that it is mostly for the community and by the community. Regular users generate content and post it for everyone else to enjoy or use on the sites that rely on that community to stay afloat. Companies that don’t have a huge amount of resources available to them could find themselves having to divert expenses towards seeking legal defence rather than expanding or developing their services. In absence of funds the likelihood is that they would shut down altogether, or at least close down the aspects that allow public interaction. And if e-sports enthusiasts can’t interact, if volunteer content is to be screened or pre-unapproved as a means of ensuring that no laws are broken, then the industry is in trouble.

Actively Opposing The Bill

One of the most perverse thing about the bill is that despite being American legislature it affects everyone on the planet with access to the internet. It has been coming a long time. We’ve mostly shrugged our shoulders when we’ve seen America attempt to extradite autism sufferers from this country, or British students for hosting websites with links to illegal content. It is a monstrous conceit that the American government, manipulated by big business and their lobbyists, deem themselves as being the only people that can apply their laws and punishments to citizens of other countries who have never even set foot on their soil. It was however an indicator of which way they were going to lean when it came to online copyright legislature.

This might leave you thinking there’s not much you can do in order to oppose the bill. However that is not the case. The good part of globalisation is that it makes each of you a consumer and therefore someone business needs to appease if they are to be profitable. You can apply pressure to the companies that support this bill simply by refusing to purchase their products and there are a number of groups set up to ensure people are aware of who to avoid and who not to.

A notable example would be what happened to domain registrar Go Daddy, as reported on Ars Technica. The company was vocal about their support for the bill and when a boycott was proposed by several parties and threads made on Reddit a spokesperson for the company seemed disinterested in the weight of such opinion. “Go Daddy has received some emails that appear to stem from the boycott prompt, but we have not seen any impact to our business” was the statement they released.

Like waving a red rag to a bull the arrogance of such a statement spurred other customers to further action and within 24 hours of that statement being released the company were forced into a humiliating climbdown, withdrawing support for the bill.

Gary McKinnon, Aspergers sufferer, who still faces extradition to the US

Their CEO, Warren Adelman, personally delivered this change of outlook, saying “Fighting online piracy is of the utmost importance, which is why Go Daddy has been working to help craft revisions to this legislation—but we can clearly do better. It's very important that all Internet stakeholders work together on this. Getting it right is worth the wait. Go Daddy will support it when and if the Internet community supports it.”

Boycotting companies who support the bill doesn’t even necessarily require you to do much research. The creators of a new Android app has enabled users to check which companies support SOPA simply by spanning barcodes on products.

Perhaps this in itself is indicative of the way that the fight can be won. Ultimately the people that are behind the bill do not understand the technology they are trying to censor, nor the generations that have become so accustomed to the internet as an instrument of free speech and new ideas. We have seen the internet become instrumental in overthrowing corrupt governments worldwide, so it is not safe to say that bigger fish have already been fried than big business? And where business differs from dictators is that they will always have to come to the likes of us for money. That revenue stream can be turned off in such a way that it would make the losses from piracy seem paltry and a fair alternative to a reality where we accept it’s better to not watch the latest blockbuster in the cinema if it means we live in a society of stringent and unfair internet censorship and underhand business practices.