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making the sausage

Polone: Why I’m for SOPA, and How the Entertainment Industry Blew It

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Mark Zuckerberg, Craig Newmark, the Google guys, and all of the other tech superstars slammed it to those traditional media companies promoting the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) last week, managing to stop the bills. They are so fucking smart and cool. They are also so fucking wrong. But so far, wrong hasn’t mattered much. I have read both proposed laws and am certain that the concerns expressed by Internet companies are overblown. According to them, these laws will result in censorship, undue economic hardship for their companies, and a breakdown of Internet security. If you believe them, you haven’t read the law and are ignoring common sense. But why wouldn’t you believe them? They made a unified targeted case to the public (shutting down Wikipedia is a great way to get attention), while the entertainment industry opted to bypass the average web surfer, figuring they could influence legislators with their cash and get the law passed without public support. Even though the bills were shelved, at least for now, politicians are still paying attention, so unless the entertainment industry wants to miss this opportunity to finally take real action against the biggest threat to its future, they have got to break out of K Street and better communicate four truths to a now-skeptical population and get them to realize that stopping piracy does not mean the end of the Internet as we know it.

1. Movies, TV shows, and songs are the product of Americans’ work, just like any other product made by American workers. I have funded two films with my own money and am considering doing a third. Most of the people working on those films were not rich people, but rather middle-class craftsmen who make high-five-figure to low-six-figure sums per year. My decision on whether to fund another movie, thereby employing more people, will be based on whether or not I get my money back on the last two, and my prospects for making money on another. If a film of mine is put on a file-sharing site like Pirate Bay, Movieberry, and Newsbin2, and is then downloaded to potential customers, I lose revenue. Nobody is going to pay to see a movie in a theater, rent a DVD, or legitimately download or stream a movie once they already have it from a free pirate site. If that means I don’t get my money back on my last two and see less chance of a return on this prospective project, I won’t make another similar investment: The profit margin on a movie is already too small and the business too risky irrespective of piracy. And if I don’t make that third movie, that's a crew full of people who don’t get jobs. I’m just a little guy in this business, but the studios operate under the same paradigm with a much larger effect on the pool of hundreds of thousands of people who work on films and television in this country. It strikes me as odd that there is such vocal public outrage when industries export jobs to other countries, where needy people are desperate to raise their standard of living, but not a peep when some foreign website kills American jobs to nobody’s benefit but the owner of the site, like the now imprisoned Kim Dotcom. Well, I guess his Rolls Royce dealer did well, so there is that.

2. Other industries have laws to protect them against third parties whose businesses facilitate a crime. Why not entertainment? Take pawn shops: In California, in order to make sure that a pawn shop is not offering stolen goods, the owners must get extensive information and a thumbprint from each item's seller; that information must be sent to a state database and then the shop has to wait through a holding period before reselling the item. This process is costly and slows down commerce, but it is necessary to make sure that thieves don’t use secondhand dealers to profit from their crimes. Why shouldn't similar protective measures apply to content owners on the Internet? Some search engines and ISPs already take responsibility to obstruct criminality on their systems. While these practices would need to be a bit stricter, the proposed laws aren't burdensome: The bills in question are intended to target foreign sites “dedicated” to online piracy, not a teenage kid who posts a mash-up of TV clips on YouTube. The laws mandate judicial review, so a judge will have to issue an injunction after “specific facts” are shown that make a good case that a site is predominantly used for piracy. The movie studios can’t just tell Google to block any site they want. More important, websites need only provide “technically feasible and reasonable measures” to respond to a court order, and the respondent can decline to obey if they lack the “technical means to comply without incurring unreasonable

burden,” meaning no company will go bankrupt adhering to the law. The bigger sites like Google, Facebook, and eBay would face bigger costs to act in accordance with SOPA and PIPA, but these companies are extremely profitable: Google had profits of $3.51 billion and $44.6 billion in cash on its balance sheet last quarter, so it's hardly an undue burden for them to spend more on staff and technology to make sure that they are not aiding thieves. A byproduct of this legislation will probably mean more jobs created in Silicon Valley.  

3. This is in no way censorship. A widely read op-ed piece by Rebecca MacKinnon in the New York Times likened SOPA and PIPA to China’s Internet firewall, which is used by that government to stifle criticism of its policies. This is a ridiculous exaggeration. There is no intent to suppress speech in these bills, only theft, and the risks of anyone being unable to find an outlet for their free speech because of SOPA or PIPA is minimal. This “nose of the camel” argument is a ploy commonly used against any new legislation, and the dire warnings are rarely realized. For example, in the early nineties, many predicted that if NAFTA passed, millions of Americans would lose their jobs; instead, the next decade found record low unemployment. During the thirties, the Social Security Act was maligned as a step toward socialism and an exercise in excessive government control. The gun lobby protested that passing the Brady Bill would lead to a full-scale ban on guns. Google, Wikipedia, and other sites saying SOPA and PIPA are an exercise in censorship is similarly hyperbolic. Yes, sites that are regularly used to share pirated films and music also do some legal file sharing, but closing them down will not limit anyone’s right to share ideas or non-copyrighted files that aren’t stolen. If someone wants to broadcast their thoughts about Syria’s government or disseminate a report on women’s rights in Indonesia, they will still be able to do so on Twitter or Facebook or thousands of other sites that will surely adhere to the new law by “reasonably” policing their content and responding to court orders. As further protection, the laws state that should someone knowingly bring a false claim against a site, the defendant can countersue and would be due damages, attorney’s fees, and costs. 

4. Blocking offenders will not break the Internet nor security. I’ve read numerous articles in which techies claim that DNS (Domain Name System) blocking — which forces ISPs to not allow access to sites determined to be trafficking in stolen entertainment — will undermine security and/or “break” the Internet. Like many of you, I am not versed enough on technical issues to explain how DNS blocking programs work or what may be the right method to ensure Internet security. But here's something I know from personal experience: I used to lose small amounts of money on online poker and I don't anymore because these gambling sites were successfully blocked by the government. And I also know — not from personal experience — that sites that offer child pornography are routinely blocked by ISPs like Verizon, Cablevision, Time Warner, and Sprint. DNS blocking is also used pervasively against phishing and malware. So why isn’t the Internet broken now? Last week, before the SOPA bill was dropped, the blocking provision was removed as a compromise to the law's opponents, and I think this is a shame. Blocking is an important and effective tool and losing it will mean more theft.

The entertainment industry failed to make any of these points and was quickly rolled over by the Internet companies' propaganda. It needs to turn things around right now by targeting public opinion with a concise message. Motion picture, television, and recording executives should produce 30-second commercials starring famous actors and musicians that say, basically, this is not about censorship, it is about protecting American products from overseas thieves: Pointing the finger at foreign entities who steal from U.S. workers is as mobilizing a message as saying “no” to censorship, and using celebrities will attract more attention than previous attempts that featured earnest union workers. The commercials should be attached as trailers to every film print in North America, run on every cable channel and local station, and be prominent on all of the entertainment companies’ websites. (Though the opponents of SOPA and PIPA control the biggest sites, entertainment companies also have huge Internet reach with CNN, ESPN, the Weather Channel's sites, and Hulu among the most viewed.) And even if some versions of SOPA and PIPA are eventually passed, the industry needs to continue to promote the idea that copyright is property, a concept the public has found difficult to grasp for about two centuries. In 1842, Charles Dickens traveled to America for a speaking tour; his books were widely read here, but royalties to him were almost never paid, and he was met by huge crowds of initially adoring fans. Those fans quickly turned on the author when he spoke out against literary piracy, thinking him greedy in taking their money at the door and then wanting them to actually pay him for the books that made them want to see him in the first place.  In retrospect, the public's perception of intellectual property hasn’t moved that much in the last 160 years: I have heard similar rationalizations about how it is okay to steal downloads of songs because it promotes the artist’s tours. Yes, we need a law to make it more difficult to pirate copyright protected product. But in order to get it, the entertainment industry has to educate, as well as legislate.

Gavin Polone is an agent turned manager turned producer. Follow him on Twitter: @gavinpolone