The Pirated States of America?
Why is it, that Internet piracy so important, that in the past year, Congress has been overwhelmed with bills in the likes of SOPA, PIPA, and CISPA? Perhaps because the American public believes that ideas are important and worth protecting. Make no mistake; the ideas that are being protected are not just big media entertainment. They are your ideas. The ones you haven’t had yet; the ones that are going to make you rich. That is, unless some lazy person in China or New York steals it out from under you. Are these bills really threatening to violate our first amendment right, which allows us the freedom of speech? Only if you think that free speech includes someone showing up at an elderly person’s house selling a driveway full of substandard asphalt. Because taking ideas from people is a crime just as stealing someone’s money and possessions. But isn’t it true that these bills are producing government censorship modeled after China; a country allowing no freedom on the Internet? Only if, by freedom, you mean the right to do anything to anyone, so long as you don’t get caught.
But wait, haven’t you heard? It’s these kinds of bills that are killing innovation and allowing larger companies to destroy start-ups before they even have a chance. Some media and entertainment corporations are pushing for these bills to pass because they are frightened by the idea of competition. They refuse to comply with the idea that, in reality, it’s their fault for the success of pirating in the first place, due to their lack of a more convenient service. As most will say, the real issue of piracy is not about a piracy problem, it’s about a service problem. How could congress vote for something that is clearly unconstitutional and old fashioned? Can’t they get with the times?
As a graduate with a political science degree who is currently an intellectual property consultant and investigator, as well as a future law student studying intellectual property, I can only look at the issue of piracy in one way. The media has done a great job destroying bills such as SOPA by telling them it is government censorship and it is going to end up getting users arrested or shut down as the result of a single unintentional offense. The media says it will demolish innovation and kill jobs as well as the internet. The truth is, this is simply not the case.
Intellectual property is a company’s most important asset, especially since the advent of globalization and the Internet. Intellectual property is more than a famous name; it is how companies reach customers. It is why they are able to do business profitably and create jobs. Intellectual property is, in itself, purchasable, tradable, and can be given to your children. In short, intellectual property is real property like your house, car or phone. If your job was selling cell phones and somebody broke into your warehouse and stole a ton of inventory and started selling them on the street, is that acceptable? Is that just friendly competition? No. There should be, and is, a law about someone steeling your inventory and selling it. The difference in today’s market is that thieves are using the Internet to break into virtual warehouses and steal a brand’s value. Since the internet is a quickly expanding marketplace of ideas, there are actually few laws that protect businesses from the theft of their most valuable possession: their identity. Piracy is costing every company huge amounts of money because for every fake product people purchase, there is one less real product being sold. For every fifty-dollar counterfeit that someone buys for a Christmas gift, there is fifty dollars that is not going to be spent on legitimate merchandise that Christmas. It is not only the company that sells the real item that suffers, but every vendor who has something legitimate to sell.
So, can Internet piracy be stopped?
Every time one piracy site gets shut down, after months and months of investigation and litigation, another dozen sites pop up on the internet. Every time new anti-piracy technology comes out in DVDs, CDs, and MP3s, programs are written to remove these new protections before they even hit the shelves of stores. Even if every piracy site on the internet was shut down (which is an absolutely impossible task for a slow-moving government such as our own) what is stopping me from buying the new Tupac Hallogram Tour DVD and burning hundreds of copies of it for my friends and fellow rap fanatics.
If the task of stopping piracy, or even slowing it down, is so impossible, why is the American government wasting so much time and money on the issue. I’m sure it’s out of some sort of misguided sense of justice and has nothing at all to do with the millions of dollars spent lobbying the government by media corporations in the past couple of months.
The true answer is yes, piracy can be stopped. Individual companies can, and have, successfully shut down online pirating vendors. The real question is, how much time and money does it take to accomplish the task? The laws that companies are lobbying for will not allow the government to police the Internet. The government is not interested in taking on that task. How can the government possibly know the licensing strategy for every single trademark that has been filed and who is or is not an actual licensee? These laws will not give power to the government and allow the government to independently stop pirates. These laws are giving power to companies, big and small. It’s giving power to entertainment and apparel companies. It protects the future for upcoming companies who are innovative and creative, who believe the promise that they will be able to legally protect their ideas. Those who risk their capital to make sure new ideas make it into the marketplace and into your living room are counting on the promise that their constitutional right to control their own property is not going to be rampantly disregarded.
What does the constitution say about the larger issues? Well, it does say you have the right of free speech. But is this really a free speech issue? Nope. It is a commercial crime, theft, and forgery issue. It is crime against property. Many argue that with these bills, using any brand images or music in a blog will get the user indicted, but the truth is that the bills will do no such thing. They specifically state that the user has to be making money off of the pirated item or infringement in order to be prosecuted. This means that these “online censorship” bills are only targeting commercial use, not creative and artistic use. And even then, in my experience, only companies who exist solely for intellectual property theft are shut down and prosecuted. For most people, an educational cease and desist letter is mailed to the infringer with a rather restrained and friendly reminder that the vendor does not actually own what they are selling. An innocent user will kindly take it down from their store and move on to other profitable merchandise.
Just because the playing field changed from brick and mortar storefronts to online storefronts does not make theft okay. Even if piracy cannot be completely stopped, it isn’t justified and it certainly shouldn’t be legal. Laws are still needed that allow private companies to protect their brands both globally and domestically. The real crime isn’t killing free speech by passing these laws; it is killing property rights by not passing them.
Terrible problems like war, hunger and pestilence are going be solved one day by somebody’s hot-off-the-press creative ideas that nobody ever thought of before. Unless, that is, they are pirated first.
The reason we don’t steal Tupac’s new DVD is the same reason we don’t steal our classmate’s iPod from his dorm room.
See also In Shallow Seas We Sail