IP lobby v liberty?

A line in America’s national anthem claims the country as ‘the home of the free.’ Not for the first time, some Americans are claiming there must be a certain irony in the phrase. These are citizens who believe any restriction on the Internet is an enemy of innovation and, more importantly, their First Amendment rights to free speech.

Those on the other side of the argument would say there is no constitutional right to free access to someone else’s property (in this case intellectual property), and taking it without permission is what is commonly known as stealing.

As usual in America the argument is polarised, and the arguing is characterised by lobbyists carpet bombing of the alternative point of view. There is no such thing as balance, never mind an allowance that the ‘other side’ might have a point. Both sides accuse the politicians supporting the ‘wrong argument’ of being in the pockets of the – very substantial – business interests lined up against each other.

Why should the rest of us care? For the same reason that – though we may find it alternately hilarious, bizarre or downright frightening – we have to care about their Presidential election; because, in the end, it affects us all.

Even though the similar but competing PIPA and SOPA acts (sounds like they were named after a tripping rock star’s children), are primarily domestic legislation they do have significant international dimensions.

The problem is both parties have backed themselves into too extreme a position, and neither one’s current stand looks sensible.

It isn’t feasible for the ‘Silicon Valley crowd’ to simply claim letting ‘a thousand flowers bloom’ in terms of technical and service innovations is an excuse for wholesale looting of intellectual property that belongs to producers, distributors and artists. There has to be some kind of policing, some kind of arbitration, some kind of ability to block access and some kind of sanction for offenders.

Google’s contradictory position illustrates the weakness of the ‘let freedom reign’ argument. It now spends a fortune policing YouTube and alerting rights holders to infringing uploads in a laudable effort to clean up its hitherto cavalier attitude to rights. This is not least because it wants to be a grown up TV service and no sane rights holder would deal with it before. Yet it won’t countenance proactive policing of its search functions via which anyone, anywhere, can find handy lists of where to access virtually any content without paying the rights holder.

On the other hand the content owners – and it is the major studios and record labels to the fore – have always mounted massively overblown claims for the damage of piracy; much of which they encouraged by being too slow to move to online business models and investing too little in security.

I’m not saying it is merely a nut for which they have fetched a sledgehammer. But neither is piracy the thermonuclear device they claim they have to respond to in kind. They have been claiming piracy is the Death Star for years – so how come almost no record labels or studios have gone out of business (EMI is a result of massive overpayment and mismanagement)? How come theatre and pay-TV revenues continue to climb?

And their credibility is not helped by claiming an ever escalating number of billions lost every year to pirates. 1. How do they know – the amount of material stolen can only be a guesstimate? 2. Their figures always assume every single item stolen would otherwise have been purchased at full retail price. 3. They never assume that a single pirated piece of material ever lead to anyone then making a legitimate purchase.

But these irrational claims have lead to draft US laws that will load up the ammunition too heavily on the side of the content owners. With a US Court Order they will be able to oblige ISPs and search engines – or any other kind of site – to bar links to others they have ‘reasonable grounds’ to think are infringing their copyright. And they can force American transaction companies (the credit cards) and advertising networks to cease doing business with those sites.

It seems sites in America and, in particular beyond, are likely to have their business undermined before they have access to any due process that might allow them to show their innocence. This could – for instance – extend to bloggers where someone responding to a blog includes a link to content that allegedly infringes. A lot of innocent Interneters may get caught in the crossfire unless sensible compromises are fed into the legislation. And you only have to look at the raucous national politics of the US in the 21st century to know that – for now – sensible compromise is not The American Way.

 

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