I’m not a worrier by nature. Ask anybody. But I am worried about SOPA, the online anti-piracy act that was shelved last week after acts of desperation by Google, Wikipedia and others. Shelved – but not killed.
Thousands of words have been written about SOPA, many of them incredibly confusing. Discussion of the bill has been framed as a battle between entertainment Godzillas and Internet Mothras, as a watershed difference in generational mindsets, and as the monkey wrench that will wreck the international domain name system. Those in favor of SOPA argue that it’s necessary in order to assure rewards for creativity. Those opposed worry that it’s a dangerous erosion of our freedom of speech. Most technical experts say that it just won’t work: while capable of extraordinary harm, it’s highly unlikely to do much good.
These are worthy topics of discussion, but as a marketing and web professional, my SOPA worries are entirely different. I’m worried about web hosting companies that are so afraid of SOPA that they severely restrict what their customers can post on their own websites. I’m worried about hosting prices that skyrocket so fast and high that small businesses will be priced out of the Web. I’m worried about the end of the Web as a way for companies to engage in conversations with their customers, and its transformation into a series of dull, static, SOPA-safe billboards. Mostly, I’m worried about abuses of loopholes that amount to legalized extortion.
Here’s how SOPA works, and why it’s keeping me up nights:
- Under SOPA, your domain could be blocked simply because your site is “capable of” copyright infringement. Think about it – what site isn’t capable of copyright infringement? It’s a bucket. I can fill it with nicely legal original content and some fully paid-up stock photos, or drop in a copyrighted picture of Elvis and an unauthorized chapter from Twilight. As long as I have control over my own content, I’m vulnerable.
- Once your hosting company gets a court order to block your site, SOPA requires that they make it invisible and inaccessible to viewers in the U.S. within five days. Let’s be clear on this, because it’s nasty: We are talking about blocking your entire site and domain name. If you have one page with one questionable paragraph, photo, embedded video, or audio clip, your entire site is toast. The best you could do in those circumstances would be to buy a new URL, put up a new website, and hope and pray that your customers find you before you go out of business.
- Under SOPA, your internet service provider is forced to play policeman on your website. It’s been pointed out many times that this could force ISPs to sensor content for their own protection. The costs of the staff required to police content adequately would be astronomical. Some ISPs might simply close up shop. Others would have to raise their prices by an order of magnitude. It’s not a far leap to think that some small businesses would be priced out of the internet entirely. So much for the Web leveling the playing field.
- I can envision other unpalatable scenarios, too: web hosts banning the use of all non-original photographs or logos, for example. If you’ve ever had to call your ISP for technical support, just imagine what a nightmare it would be to manage this scenario: “We just got certified as a (Cisco Channel Partner, Organic Farmer’s Market, ISO 9001 Facility, Environmental Dry Cleaner). Who do we have to talk to for permission to use the certification logo on our website?”
- In a SOPA age, you might also have it written into your hosting plan contract that you agree to bear all the legal costs your hosting company might incur to defend themselves in a legal wrangle over your site’s content. Can you imagine being liable for a $100K legal bill because one of your employees posted a Flickr photo on your company blog?
Most of all, I’m worried about Son-of-Righthaven.
Righthaven was a company that declared bankruptcy in September of 2011, after the courts put it out of its only line of business: filing copyright lawsuits against website owners, most of them bloggers.
Righthaven took on content creators as clients – a newspaper in Nevada was one – or simply purchased the copyrights of content outright. They then went trolling for violations, suing for the maximum $150,000 penalty, but settling for a few thousand dollars and transfer of the “violator’s” domain name to them. A typical target was a blogger who had used a news photograph, or quoted part of a news story, without permission. Before they were stopped, Righthaven filed almost three hundred lawsuits and netted hundreds of thousands of dollars in settlements.
Now, I’m a passionate defender of copyright. My livelihood depends on generating original content for clients. My dad, a retired book publisher and author himself, is also a big fan of copyright. Ditto for my daughter, a screenwriter and film director. We’re three generations that like copyright protection, because as a family, we enjoy living in houses and eating food from grocery stores.
But it’s hard to imagine how SOPA will effectively defend copyright without opening the door to Righthaven-like abuses. I imagine Son-of-Righthaven lawyers have already figured out a long list of loopholes that will line their pockets. Until the loopholes are plugged one by one, the collateral damage could be huge. (Righthaven’s heyday lasted almost two years.) To accept that cost of protecting copyright is like trying to warm your house by setting it on fire.
What might happen under SOPA? Here’s one scary scenario.
Let’s say you’re a home-improvement company. A popular feature of your website is a section that invites customers to upload photos of their homes before and after renovations.
Far, far away, in a nondescript business park, in a suburb of Tampa or Wichita or Paramus, a young man trolls the Web looking for copyright violations. Son-of-Righthaven pays him minimum wage plus a bonus for every violation that he finds.
On your website, he finds a photo of a remodeled living room that was uploaded by a customer. Included in the photo is a limited-edition print by a famous artist. Or a movie poster. Or a can of brand-name air freshener. Or a box of tissues with the label on it. Or a kid wearing a celebrity T-shirt. Or, as The Daily Show has pointed out, a television set that shows a rerun of Newhart.
Son-of-Righthaven contacts the copyright holder and suggests a collaboration. The lawyers explain that you are a large company with deep pockets. They tell the copyright holder that you make a significant portion of your sales from your website, and can’t afford to have it shut down. Son-of-Righthaven is confident that they can get a large settlement from you to avoid court, making this a no-lose proposition. They’ll do all the work, and give the copyright owner a portion of the proceeds. “Money for nothing,” as Dire Straits so eloquently put it.
A few days later, you get a letter from the law firm saying that their client has agreed not to take action that will permanently close down your URL. All you have to do is to immediately take down the offending material, and pay them a settlement fee of tens of thousands of dollars. And you’ll probably do it, because you don’t want any of those other awful things to happen.
But there’s a better solution: Just stop SOPA.
SOPA is dormant, but not dead. It can come back to life at any time. If that prospect worries you as much as it worries me, tell your lawmakers how you feel.
Resources:
How SOPA would affect you: FAQ (c|net)
Letter opposing SOPA from Democratic and Republican house members (PDF)
Law Firm Finds Success Targeting Those Who Post Copyrighted Images (TIME Magazine)
The End of Righthaven? Lessons from A Serial Copyright Plaintiff (Cobalt Law Review Blog)
