Yesterday, my Twitter feed brimmed with news of SOPA, the so-called “Stop Online Piracy Act” that was being discussed in a House Judiciary Committee hearing. Scathing comments streamed by, concerned with freedom of speech, punishment without due process, and a fear that if passed into law, the bill would move the United States toward becoming a repressive regime.
Although it’s tempting to dogpile, instead of commenting on the commentary, I wanted to read the bill myself. So, I slogged my way through all 78 pages of H.R. 3261 to arrive at my own conclusions.
Although most of the bill’s criticism comes from a civil liberties perspective, I have a more fundamental problem with it–the bill’s details, or specifically the lack thereof. The bill describes a detailed process–from the moment a property rights holder makes a copyright claim all the way through how to stop the offense–yet it does nothing to clarify what an infraction is. Therefore, with a clearly defined punitive process and no clear definition of a violation, a deep-pockets plaintiff can wreak havoc on a shallow-pockets defendant. Considering the present economic climate, where advances in digital media technologies have allowed David to go toe-to-toe with Goliath, this bill–as written–opens dark new competitive options for Goliath.
I’m a staunch supporter of the intellectual rights of content creators. I’m also a staunch supporter of innovation. If the goal of this bill is truly “To promote prosperity, creativity, entrepreneurship, and innovation by combating the theft of US Property…” then shouldn’t it be able to define what constitutes an actual theft? The bill references our present copyright laws as a start, but those still do nothing to clear up the murky issue of fair use.
Let’s take two very simple cases:
1) A website owner rips a copy of “Star Wars” from their DVD and puts it on their server for anyone to download.
2) One author quotes another author, with full attribution according the Chicago Manual of Style.
Most people will agree that case #1 is a clear violation. By the same token, case #2 demonstrates a generally accepted writing practice.
But case #2 gets foggy when we step out of the text domain and into that of rich media, where no concept of an acceptable excerpt exists. For example, what constitutes fair use for a song? A few notes? A phrase? A hook? The entire chorus? Or what about a feature length film?
A 90 minute film shot at 24 fps consists of 129,600 frames. Is it acceptable to use one frame with full attribution, without asking for permission, or could the film’s copyright owner claim a violation through the Stop Online Piracy Act? For the sake of argument, let’s assume that a single frame is acceptable. If so, at what point do we cross the violation line?
Take this example. If one book author attributes 100 words of another book author’s 75,000 word work, 0.13% of that book is being used under fair use. If 0.13% is an acceptable for a text-based work, couldn’t an argument be made that 7.14 seconds of a feature length movie could be used in a similar way?
The problem is that H.R. 3261 contains a long list of punishments for a crime that the government has still yet to define.
Or can it?
The last few pages of the bill describes a responsibility to train property attachés, those agents who are tasked with defending U.S. intellectual property rights abroad.
“The Secretary of State and the Secretary of Commerce shall ensure that each intellectual property attaché appointed…is fully trained for the responsibilities of the position before assuming the duties at the United States embassy or diplomatic mission to which the attache is assigned.” (74:13-18)
“Such training and technical assistance programs shall be carried out in consultation with the Intellectual Property Enforcement Coordinator.” (75:11-14)
So, if I’m reading this correctly, the Intellectual Property Enforcement Coordinator is responsible to train these property right defenders. If so, shouldn’t training guidelines exist? What are they? Where are they? Is this training available to the public? If not, why not? Content creators would fill these classes in droves.
My problem with H.R. 3261 is that it can’t “…protect the creativity, entrepreneurship, and innovation…” of new works without defining what parts of the old works are allowed to be used legally.
Until such a definition exists, the bill will hang like the sword of Damocles over those who seek to innovate through legally building upon the works of others.
|A quick Internet search has led me to the name of the US Intellectual Property Enforcement Officer. Her name is Victoria A. Espinel. I just sent her an email with an interview request. Perhaps she can shed some light on the subject for us.|
Photo Credit (CC): bulletproofbra