On Copyright, SOPA, and PIPA


Hi. I’m, um, not doing the whole blackout thing today. Sorry. Instead I’m going to talk about copyright laws. Feel free to take a nap instead of reading this post. It might be pedantic and boring.It also might be full of holes as I realize how many of the details of the copyright law class I took in grad school have escaped me in the past ten years.

I’m going to start by saying I don’t like SOPA or PIPA. They’re laws designed to expand enforcement authorizations of existing laws and they do it by essentially swinging a sledgehammer at a swarm of gnats. From what I understand, these laws allow the Justice Department to deal with acts of online piracy – the stealing of copyrighted work – by prosecuting all offenders as felons and potentially being able to shut down any site that engages in or facilitates the act of pirating licensed materials.

What does that mean practically? Well, if you upload a music video to YouTube without proper permissions from the copyright holder, you can be charged with a felony and fined or jailed and YouTube can be shut down. And if someone else links to the video on Facebook, THEY can be fined or jailed and Facebook could be shut down.

Extreme much?

But…and here’s the thing…that upload? Was illegal distribution of copyrighted work. You shouldn’t have done it. Someone else made that video. It’s their creative work. There are laws in place to give them control over how it’s shared and used and you broke them.

The purpose of copyright is to protect individual creative works and their creators. It’s an incentive to create; making and sharing a creative work becomes a lot less appealing if the first person who sees it is allowed to copy it, share it and call it their own. That’s true whether you get paid for the work or not. I’d be pissed as hell if someone took my writing on this blog and passed it off as their own work even though I don’t get paid for it. This is MINE. I MADE IT. I’m sharing it with you, not giving it to you. And the law supports me on this.

Under the law, no one else is allowed to reproduce my work or distribute my work (for payment or otherwise) without my permission. There are exceptions of course. Lots of them. Complicated ones. For example, a teacher could print out, copy and distribute my blog post for a class under the education exemption. And people can quote portions of my blog without my permission as long as they use proper attribution (that means all the footnote-y type stuff we learned to do in 5th grade). And a person could print out a copy of a post to read later under the personal use exemption. But if they give the printed copy to a friend? That becomes illegal distribution. If I made a book of my blog and you bought a copy, you could copy pages of it for personal use but giving away those pages would be illegal distribution. However, you could do whatever you want with the book itself once you’ve legally acquired it: you can keep it, gift it, sell it, or use it as a doorstop. You cannot, however, read it aloud to an audience without my permission. Which I have to give you, I think, under the compulsory performance license clause in copyright law. I can make you pay me for the permission, though. (That’s why you see such atrocities as Cee-Lo Green being allowed to perform and mangle John Lennon’s “Imagine”. Lennon’s estate is required to allow performances of the song as long as the performer pays the price they set.) If I held a staged reading of my book, you could come hear it, talk about it, write about it, quote it with attribution or review it but you cannot make a video or audio recording of the performance without my permission. However, if the performance is on tv, you can record it to watch again by yourself or with your household. But inviting a bunch of people over to watch the recording with you is illegal distribution. As is posting it online. But that teacher I mentioned earlier can show the video in class under the education exemption. But if my readings are going to become a series, I can sell you a license to show it in public, say in  a bar the way the NFL or music distributors do.

Head spinning yet? I know. It’s dizzying. And I haven’t even gotten into all the definitional questions of what constitutes a copyrightable work.  Not will I. Because I want you to keep liking me.

As I see it (and this is strictly a layman’s observations and not a legal observation), there are two kids of piracy online. There are the people who are stealing lisenced content and selling copies and making money off their theft and in so doing, cutting into the market for the legitimate sale of the materials, be they music, movies, tv shows or what have you. Then there are the thoughtless linker-uppers who are just trying to share a funny clip or great song with their friends. SOPA and PIPA don’t separate the two and that’s the problem.

The guy who’s running a black market and making a living under-cutting the legit market is a problem and needs to be dealt with. The kid who copies a portion of a DVD he bought to YouTube and all the people who click “share” on the video to Tweet it are not a problem. They’re breaking the law, yes, and they shouldn’t be doing it but they’re not market disruptors. They’re the contemporary equivalent of the guy who made you a mix tape in 10th grade. However, their offense is ubiquitous and visible in a way that mix tapes weren’t, so the authorities see the scope of the activity. And small time infingement is no longer the province of teens with a dual-deck cassette recorder and too much time one their hands; many more people are doing it now because it’s easy and takes no time.

But it’s illegal. And I think it’s immoral. I don’t think you should be jailed for it. But I think you should stop doing it. Someone made that video you’re linking to. It’s their’s. If they didn’t say you could put it on your Facebook page for free, you shouldn’t do it. Some artists do give permission. They put up free content on their official sites or YouTube channels and put a “share” button on it. That you can share. Anything else is probably illegal distribution. So don’t do it.

Some of you are having a “fight the man” knee-jerk and thinking that it’s cool to protect the independent artist but why take the trouble to protect the big studios when they’re raking in piles of money already? Because you can’t separate the two. All creators and their support networks have to be equal in the eyes of the law. A successful artist is entitled to all the same protections as a struggling artist. The protections help foster success.

The future of SOPA and PIPA remains unknowable. I’ll be writing to my legislators asking that they be rejected. But I’m also going to remember to be more mindful of the content I access and share online and I’m going to try and stay with the legitimate, not the pirated.

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9 comments for “On Copyright, SOPA, and PIPA

  1. January 18, 2012 at 1:24 pm

    Yes!

    I’ve been waiting all day for you to write something about this so I’d understand.

    Thank you.

    Where were you in grade 12 political science?

  2. January 18, 2012 at 1:30 pm

    This is very helpful, thanks! My sister’s a recently-minted attorney, and she has tried to describe various aspects of copyright law to me on a couple of occasions. It’s head-spinning, for sure. I will try to be more cognizant of what I’m “liking” and sharing, as well.

  3. January 18, 2012 at 1:58 pm

    They were discussing both laws on NPR this morning with people from both sides and the ONLY thing they all agreed on is that online piracy is a huge problem that needs to be addressed.

    The original intent of the laws – at least the way they were being explained – was to stop foreign websites from profiting from illegally obtained material/links. It is ALREADY possible to prosecute the kid who puts up stolen MTV videos on YouTube. Those get pulled all the time. Regular old Americans have been prosecuted and jailed or fined for downloading stolen music (remember Napster?). But a guy sitting at his computer selling 99 cent downloads of stolen music off a page running hundreds of Google ads is untouchable, as long as he is in Singapore. Or India. Or the middle east somewhere. That’s wrong! We should be able to But even the expert in favor of SOPA/PIPA admitted this legislation was so far reaching that it did make it possible for the government to shut down Google if they refused to remove ANY links companies or individuals claimed violated their copyrights.

    The other really interesting thing about this legislation is that it was heavily lobbied and sponsored by Hollywood and the music industry. These are companies that used to make all the profits selling VHS tapes, DVDs, records and CD’s, and as consumers have abandoned those mediums in favor of digital options they’ve seen their profits plummet. Instead of throwing millions of dollars at PIPA, they should be spending it on new technology to provide consumers with what they WANT.

  4. January 18, 2012 at 2:00 pm

    That should read: We should be able to *shut those sites down.*

  5. January 18, 2012 at 2:10 pm

    This is a great article. And as someone who used to design digital product, I think the INTENT is wonderful. The execution is horrible. Another terrible thing about SOPA is that there is no due process. Someone who has a bone to pick with a blogger could falsely accuse them of copyright infringement and under SOPA it would be easier/cheaper for the blogger to just shut down than to fight it. It doesn’t make proving innocence easy and creates a censorship of the internet that it would sadden me to see in a country such as the USA

  6. January 18, 2012 at 4:00 pm

    This is probably the best explanation of SOPA/PIPA that I have found! Thank you!

    And since you have a share button I will be sharing it for others to read 🙂

  7. Jon R
    January 18, 2012 at 9:26 pm

    I think copyright laws are no longer doing what it’s original intent used to be. Copyright and Parents were enacted to promote the sharing of ideas and to securing for the creator a monopoly on that work for a “limited” time. After that limited time those works were to go into the public domain so us little people could
    use those works however we saw fit.
    The problem today, is that the “limited” time is no longer in many of our lifetimes. I think for a Corporation it’s like 120 years, for individuals the copyright is for their life + 20 years. Because of the public domain is shrinking. Not to mention the digital works with encryption that can never go into the public domain. This has made a lot of people, rightfully, upset, not to mention the ridiculous cost for content these days. The DMCA law is a very BAD law and is constantly abused by a lot of companies. If SOPA/PIPA were enacted, they would trump the DMCA on the amount of abuse that happen.
    Let us never forget who is behind the push for these types of law. Big Media companies. They are trying their hardest to blame piracy for all their woes, but the truth is that the internet has made their business model obsolete and they are unwilling to change with the times.

  8. January 19, 2012 at 5:45 pm

    Awesome explanation!! So here is my question…. Can I still put a link directing people to something that I like on the internet on Facebook, as long as I don’t call it my own? (not that I have every claimed something was my own…i just share a lot of links and don’t want to be doing something wrong.)

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