SOPA and PIPA: What's still at stake for music?
This post has been updated, see below for details.
After declaring a daylong blackout of some of the Web's most popular and influential sites to protest the proposed SOPA and PIPA antipiracy bills, including Wikipedia and Wired magazine, momentum has largely shifted away from the legislation. Several key legislators have backed off (the House has stalled on SOPA mid-markup but is set to resume next month; the Senate is mulling a cloture vote on PIPA as early as next week, but several key senators, including bill sponsors Orrin Hatch and John Boozman, along with Marco Rubio, Roy Blunt and John Cornyn, have turned against it; and the White House announced major opposition) and Internet activists are declaring a victory.
But the dust hasn't entirely settled yet. Some key provisions of the Stop Online Piracy Act and Protect Intellectual Property Act could potentially re-make the ways music is listened to, watched and traded online should Congress re-visit the legislation or pieces of it. The bills could fundamentally re-make the Internet in myriad ways, but here are a few things specifically pertaining to music:
1. YouTube as town sheriff
Right now, the burden is on copyright holders to flag illegally uploaded content on YouTube, which then removes it. But under the bills, it's argued, domestic sites such as YouTube and Facebook could be liable to do their own policing for illegal content. It's uncertain what this might mean in practice -- from wholesale blocking of vast amounts of music to a simply more-aggressive status quo. YouTube already uses its Content ID software to preemptively screen for violating videos. But the task of policing is a complex and demanding one, and smaller sites without Google's financial and algorithmic resources -- both to scour their own sites and to be legally accountable if unsuccessful -- could be heavily burdened. In response to criticism, this provision has reportedly been removed from the latest version of SOPA in the House’s markup.
2. They could silence rightfully owned material
Under the bills, ISP companies would be given almost total leeway to act preemptively to block sites accused of piracy. ISP companies respond to political and legal pressure from government and entertainment businesses (and, under SOPA and PIPA, would feel more pressure), so there's a real chance that plenty of rightfully owned or shared music could be drag-netted into a legal abyss. Fair use laws aren't precise on a lot of these disputes (a gray area where Girl Talk made his career), and powerful industry lobbies could, theoretically, draw up a blacklist on content sharers they disapproved of, and put the expensive and legally byzantine burden of proof on the user (it sounds Owrellian, but it has happened).
3. It creates a legal circular firing squad
Right now, under the Digital Millenium Copyright Act, a content owner's main recourse against piracy is to either flag it and report it to the hosting site or to pressure the Justice Department to start legal proceedings. Some companies have attempted such suits unsuccessfully against U.S. companies, but they have successfully sued foreign companies such as Kazaa and Grokster. But under SOPA's and PIPA's "private right of action" principle, it wouldn't just be the Justice Department that could start lawsuits against U.S.-based sites with allegedly pirated material -- competing media companies would get expanded legal standing as well. Big players such as Viacom could instantly file a flurry of suits against sharing platforms and shut off their access to ad revenue and credit-card companies. Some, like YouTube, would be well equipped to defend themselves in court. But plenty of smaller sharing platforms (such as Soundcloud or mixtape hosting sites such as DatPiff.com) without a vast legal team might not be able to compete with a hypothetical legal onslaught, and could throw in the towel just to avoid the wrangling.
FOR THE RECORD: An earlier version of this post described the House SOPA bill as “tabled”; it is not officially tabled but delayed in legislative mark-up. In addition, the post was updated at 4:43 p.m. Jan. 18 to reflect several senators voicing new opposition to the legislation, and to include new changes in the legislation’s proposed language and technical implications.
-- August Brown
Photo: Workers prepare the set for a keynote speech by YouTube at the 2012 International Consumer Electronics Show on Jan. 12 in Las Vegas. Credit: Julie Jacobson/Associated Press.