What's not wrong with PIPA and SOPA

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Here's one list purporting to be the "10 Major Companies Which Are Supporting SOPA/PIPA" – Philip Morris, Rolex, Dolce & Gabbana, Adidas, U.S. Chamber of Commerce, Ford Motor Company, Sony, Wal-Mart, World Wrestling Entertainment, Electronic Art – Notice something about them?

Or lets take the top seven in alphabetical order off of the list of "supporters" on this Craigslist page – 1-800 Contacts, Inc., 1-800-PetMeds, 3M, ABRO Industries, Inc. (automotive supplies), Acushnet Company (Titleist and Footjoy golf), adidas America, AstraZeneca plc. Note how many of these companies are not in the content business, but in the merchandise business.

Counterfeit merchandise is real. Yes, the dollars lost are as difficult to calculate (much less agree on) for counterfeit merchandise as they are for claims of how much copyright "piracy" costs, but the problem is real. And it is more dangerous. Drugs, automotive parts, and military aircraft parts are counterfeited.

Until the latest report a few weeks ago, footwear was the most heavily counterfeited commodity (it was just surpassed by consumer electronics). You might not have sympathy for the manufacturers of footwear or luxury purses, and it's true that most of the buyers of the counterfeit goods would not buy the original. But I worked in the footwear industry and had the privilege of working with one of the best anti-counterfeiting agents in the world, Ray Tai, who worked in China for Adidas. He had a passion for his work, not because he wanted Adidas to sell more shoes, but because he believed in human rights. He saw young children making counterfeit shoes in sweatshops, using hazardous chemicals that aren't used in authentic product, and his mission was to stop it. Stopping counterfeit merchandise is about the money, but it is also in no small part about health, safety and human welfare.

Make no mistake, I am against PIPA and SOPA. I have no doubt that, no matter how well-intentioned the content industries and legislators supporting them are, if passed these laws would be used to silence critical speech and shut down fair competition, events that occur all too commonly already under the current copyright regime. The fair use doctrine of copyright law is the major governor of overly aggressive efforts to limit speech rights, but PIPA and SOPA steamroll right over this critically important doctrine.

Free speech can be a concern in trademark too (ask Aqua about its song "Barbie Girl"), but less often and courts handle it pretty well. It also doesn't generally arise in the area of counterfeit goods, which is the only type of goods that SOPA and PIPA targeted. Taking PIPA as an example, suppose the sections that refer to copyright were removed, leaving this as the definition of "Internet site dedicated to infringing activities":

an Internet site that

(A) has no significant use other than engaging in, enabling, or facilitating the sale, distribution, or promotion of goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Lanham Act; or

(B) is designed, operated, or marketed by its operator or persons operating in concert with the operator, and facts or circumstances suggest is used, primarily as a means for engaging in, enabling, or facilitating the activities described under subparagraph (A).


All of the free speech concerns about PIPA fade away with this very narrow definition of the wrongful conduct that the law is meant to prevent. That's not to say that the remedies, particularly the DNS blocking as proposed, are workable (Professor Zittrain's TED Talk explaining why it's not is very helpful – start at about minute 5:00), but that can be fixed.

Copyright and trademark are very different. They are wrongfully placed under the same umbrella of "intellectual property" when they have nothing in common. They are authorized by different parts of the Constitution – the Copyright and Patent Clause for copyright ("The Congress shall have power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"), and the Commerce Clause for trademark ("The Congress shall have power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"). They protect different interests – intellectual creation on the part of copyright and fair trade on the part of trademark. And so they never should have been in the same bill; the two areas of law are not bedfellows. But the manufacturing industry threw in its lot with the content industry and lost.

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Pam is a Board Member of the Open Source Initiative and the principal of Chestek Legal in Raleigh, North Carolina. She works with creative communities, giving practical legal advice on branding, marketing, and protecting and sharing content.


I think PIPA/SOPA failed primarily because the list of possible remedies was too heavy-handed. If enforcement had been less, well, forceful, it might have passed.

That being said, while your concern about manufactured goods is interesting, it was not in my opinion the main focus of the legislation. The key concern was piracy of digital content, or more accurately the digital representation of intellectual property, with music being the most egregious case but movies catching up fast.

You may have a song in your heart, so to speak, that you want to give to the world and let it do as it pleases with. Other people compose/perform for a living and the process whereby they earned an income for it has broken down due to widespread disregard for their property rights.

I know that no one likes the recording industry, but somewhere along the way we let ourselves decide that the actual content creators were also evil and unworthy of reward. Can we please get some serious discussion about how to fix that?

It is independent content creators that are hurt economically by heavyhanded enforcement. They depend on publishing works that can be freely distributed (within restrictions governed by the included license). Meanwhile, many consumers have been told so many times that "copying copyrighted material is illegal" (what the "FBI Warning" says on so many of the DVDs I own) that they believe it. (The wording in that warning is wrong on so many levels - it ignores fair use for starters.)

I have often suspected that the *real* target of draconian RIAA and MPAA copyright enforcement efforts is not the consumer (they don't want to alienate more than a few of them), but independent musicians and movie creators. They want to create a climate of fear that inhibits "viral marketing".

I notice that marketing firms now also often depend on free distribution of their works. Witness the current crop of viral auto commercials (most quite entertaining).

I am able to educate a handful of people on the bus and other venues by talking about looking for included licenses (and Creative Commons does a great job of standardizing these) to know when redistributing is perfectly legal. (Most people with an income, and that includes the poor on welfare, have no desire to get in trouble by "pirating" anything .)

You know what? No one cares about independents. They're not the problem that's being addressed. What's at issue is, "it cost us $150M to make this movie, why should we let some geek with a decoder copy the movie off our DVD and give it away or sell it at some lowball price without paying us royalties?" The geeks who are trying to rewrite this as a free speech or "fair use" (ha!) issue aren't fooling anyone.

Ditto pop music, which frankly is a huge, HUGE problem right now, and the music most being pirated belongs to artists that are big, have contracts with recording companies, and get regular royalty checks. Don't stand behind some obscure Bill of Rights thing. Let's start figuring out how to make copyright and intellectual property work in the digital age.

Independents care about independents. I could care less about Britney Spears, I just don't want to get sued for playing music that I wrote.

I think the point of the GP is that the MPAA and RIAA do care about independants as people that go it their own don't bring in cash to the regime; thereby potentially enabling one of them to eventually rival their regimes. So they set the stage to get people into thinking that anything not authorized by the regimes is illegal, and thereby get the government to back their regime and surpress anyone that might rise up to challenge them.

Interesting idea. Don't know how valid it is; but there's probably a little grain in there somewhere. However, I'd probably say it may be more an unintended side effect than anything else; or just as likely they lump the independents with the pirates - its all money lost as far as they are concerned. perhaps one of the reason for their inflated figures?

Just saying

I would go further (than my previous comment), and say that counterfeiting, rather that "piracy" is the overwhelming economic harm to even mainstream content producers. I've talked to many people very happy about the "great deal" they got on mainstream movies while on vacation in South America, for instance. They were a little disappointed in the quality, but the price was fantastic.

Of course, it was obvious to me that these movies were "pirated" and resold. But the DVD covers were very professionally done, shrink wrap, trademarks and all, and looked like the legit article. These consumers would never have knowingly purchased a "pirated" work (or at least they wouldn't be bragging about it in public). So the key problem is with the counterfeited branding and trademarks - without which the "pirated" content would have a much smaller market.

(One college age girl said that she felt the cheap movies were "sketchy" - too good to be true.)

Are you suggesting that there's a practical distinction between "piracy" and "counterfeiting"? I don't get it. Is it not piracy if you wrap the content in a pretty package?

"Piracy" violates copyright law. Counterfeiting (notice no scare quotes) violates trademark law. "Pirate" wares have a much smaller market (to people who weren't going to buy the real thing anyway) without the corresponding trademark violations to trick normally honest customers into buying the illegally copied works. Enforcing trademarks also needs to preserve fair use rights (use in parody, etc), but in general seems to be less problematic to enforce.

Also, trademarks are the least controversial "IP" provisions. Patents are widely questioned as doing more harm than good (especially case law created software "patents"). A few even question whether we need copyrights - even though open source uses them heavily. (Suggesting that "open source types" don't care about copyright shows a head in the sand attitude.) But everyone agrees that trademarks are essential to a free but ordered market (with fair use provisions for parody, reviews, etc).

Stuart, I think you make an interesting point - that the content industry also has trademarks and a counterfeiting problem, distinct from an infringement problem. Many consumers don't want unauthentic goods, although they may be willing to accept goods that they know are a copy. It's just two different questions.

My belief is that copyright infringement and trademark infringement are two different animals and shouldn't be shoehorned together, but rather dealt with separately so there can be more refined approaches. GDF, I agree that the bill was mostly about copyright infringement, but the content industry included counterfeiting so it could then blur the line between true counterfeiting and copyright infringement in its advocacy of the bill. The manufacturing industry thought it was getting a free ride, but instead wound up losing because it got caught up in the firestorm around SOPA and PIPA.

The seeming need to label the activity as one thing or another is just a distraction, in my mind.

Let's ignore the fringe case of counterfeited hard goods (clear adhesive tape labeled as "3M Scotch Tape") for a minute, and get to the heart of the problem, which is unauthorized distribution of copyrighted content in digital form. Now that you can buy movies in downloadable digital format, the box it came in is not the issue. If a site advertises "legitimate copies of Avatar, only 99 cents," and maybe shows a shot of the DVD cover, how is that different from Amazon doing the same - except that Amazon tracks purchases and pays Warner Bros. the agreed-upon amount. (It's $14.99 on Amazon, by the way.) No actual DVD, plastic case or shrink-wrap is involved. It's just bits. I don't want the question of whether or not it's a physical product to be a smoke screen. It's still theft. Even if you give it away, it amounts to the same thing.

Do you consider counterfeit hard goods to be "theft"?

Sure, as a lay person, I think something was stolen, the right to have control over and profit from the distribution/sale/use of my product. But I realize that I'm arguing with a lawyer here and you probably have a specific treatment of the word, vs. other words for criminal acts in this arena. Let's not get hung up on the syntax.

No, it wasn't a trick question from a lawyer, I was just curious if your definition was consistent in both situations. I guess the "it's not theft unless you take my tangible property" purists would say that counterfeited hard goods aren't theft, either. I agree with you that the labels shouldn't matter, but the problem is when labels are used to draw analogies that perhaps aren't apt. I don't think taking someone's tangible property is the same as making a copy of someone's tangible property, so to the extent that labeling both cases "theft" makes you believe the two situations should be handled the same we've gone off-track. But I think your position that, no matter how we label it, you should have control over and profit from the distribution/sale/use of your product is a perfectly legitimate one.

Copying just makes it easier for me to use what I own. If I make copies and give them to others, that's where I would be crossing a line. If I make money in the process, that's yet another line - not only did I deny the owner a possible sale, I made money of my own. Both activities should be thought of as illegal - the distinction may only be important in determining damages.

I've never seen a downloadable digital movie that wasn't DRMed. The "instant" videos on Amazon you refer to are DRMed and DVD quality. Mainstream Pop songs are non-DRMed, but in reduced quality (MP3) compared to a CD. As far as I have seen, Bluray quality movies are only available on physical media. This seems to fit the business strategy an MPAA rebel publically espoused (somebody help me remember the name) where if you keep producing high (technical) quality content at the limits of technology, and are jealous of infringement on that, then you can be looser about lower quality versions.

DRM is another issue. I have no problem with it in rental situations, but you aren't really "buying" DRMed titles. It is more like a long term rental, and they really shouldn't be able to say "buy" in the ads. I do completely understand why movies are currently all DRMed (other than buying a physical DVD where the DRM is effectively moot).

Don't know about that. I know someone that goes to China and buys a bunch of DVDs every time. They know their pirated counterfiets, and simply don't care - even though she's a preachers wife; she says it openly to people too. The DVDs are of similar quality.

I agree, immorality from a moralist is the most irritating.

"The DVDs are of similar quality."

The difference between Asian and Latin "pirates". In one case I know, a girl bought "Soul Surfer" in Ecuador, came home and opened it, and found that the movie inside was cam corded in a theatre! No subtitles, no features, just a poor quality analog copy of the movie.

I think it's interesting that the woman probably has righteous indignation about "plagarism" but, because she is fully aware the DVD's aren't what they purport to be, she doesn't have a problem with them. Compare this to the person in Brazil who was fooled. I think it still comes back to the fact that our moral compass is more about deception, not copying. Sorry, to a trademark lawyer everything looks like a reputation problem. :-)

The interesting part of the cam corded movie was that you could hear people wispering (in Spanish) in the theatre! And every so often someone would walk in front of the camera to use the restroom or something. That quickly became more interesting than the analog TV quality movie (which she quickly got a real copy of). It was more of a "derivative work", capturing some of the "experience of a movie theatre in Latin America".

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