Where SOPA supporters went wrong

What SOPA supporters and lawmakers didn't realize was that the law provided a howitzer-sized deterrent to a peashooter problem.

SOPA, the legislative shorthand for the Stop Online Piracy Act, has been a hot topic as of late. The law aims to stop theft of U.S. intellectual property (IP), focusing on illegal downloading of songs, movies, and other content in electronic format, as well as websites selling counterfeit products based on U.S. IP. The "teeth" of the legislation is where it has run into strong resistance, mainly provisions that allow the government to demand Internet service providers with U.S. customers block access to a site accused of profiting from or facilitating IP theft. The rationale behind co-opting U.S. Internet service providers is that SOPA is meant to stop sites outside the U.S., where the U.S. government has no jurisdiction. Were a U.S.-based site to offer "faux" Gucci products, for instance, the government already has the legal means to shut down the site.

Attempting to reduce IP theft seems like a reasonable objective, despite the juvenile arguments that range from "that [movie/software/song] costs too much" to "it's OK to steal from those ‘evil' corporations." IT in particular is a knowledge-intensive business, so most of us get that the "harmless" act of copying some bits and bytes actually does have a monetary impact on a fellow knowledge worker. While it's still not reason enough to condone stealing, there's a fair argument that the movie and television studios in particular have done a poor job of providing a service that seems in high demand: an ability to consume their content easily on any device. Unfortunately for the industry and its customers, that capability is not legitimately available at any price.

When you dismiss those who object to SOPA based on the grounds that it will put a damper on their ability to steal someone's IP, there are still two very legitimate concerns: the "slippery slope" factor and concerns around due process. Slippery slope proponents suggest that many of the technical elements that SOPA would require are the same as ones used by repressive regimes to control their citizens' activities on the web. With these measures in place, an unfriendly government could spy on citizens or restrict their access to the Internet. Concerns about due process center around provisions of SOPA that require ISPs to essentially block first, and ask questions later. An unscrupulous competitor could report a website for SOPA violations, and potentially use the government to temporarily put that competitor out of business. Depending on your political leanings and trust in your government, these could be seen as moot points for the law-abiding citizen, or legitimate concerns about government overreach and co-opting government to serve corporate interests. So, could SOPA have been "sold" to the American public more effectively?

It's probably fair to say that most Americans understand that intellectual property theft is not a victimless crime, but where the outrage over SOPA comes in is that it brings out the worst in heavy-handed government intervention to a problem that seems a bit petty when couched against other socioeconomic challenges. I would imagine the bipartisan majority that signaled their support for SOPA spent about eight seconds considering the law before concluding something to the effect of: How can anyone be against IP theft? What they didn't realize was that the law provided a howitzer-sized deterrent to a peashooter problem. Couple this with volumes of copyright law and SOPA feels a bit like double-secret probation: punishing an activity that's already illegal with particularly draconian countermeasures.

While it's easy, and in more than a few cases warranted, to drag the RIAA (Recording Industry Association of America) and the MPAA (Motion Picture Association of America) through the mud, tech companies' dire predictions of Facebook being taken offline by SOPA and violent opposition to these laws are also somewhat disingenuous. Google has built a billion dollar business surrounding others' intellectual property with advertisements, walking a fine line between fair use and wholesale commercial exploitation of others' work. Trumpeting themselves solely as champions of freedom while quietly defending this business model is not much better than RIAA suing teenage downloaders.

I see a twofold silver lining to the SOPA mess. SOPA has thrust the question of intellectual property protection into the spotlight, and forced people to consider how they consume and pay for intellectual property generated by others. There's a fair argument that traditional notions of copyright may be a bit outmoded; should someone posting a video on YouTube with a popular song as a soundtrack have to pay licensing fees? What if they generated millions of hits and millions in revenue for Google? Some even take the extreme position that all this IP should be free for the taking. That may be fine and dandy, but if no one is willing to pay for an elaborate theatrical production, how will it get produced in the first place?

The second major coup I see resulting from SOPA is that the massive backlash may force lawmakers to deeply consider highly technical legislation before acting on it. Most professed die-hard SOPA activists don't understand the technical provisions of the law, let alone a senator who may have spent all of a couple of hours using a PC during their entire career. I have doubts the "wild west" days of the Internet are coming to a close, and hope that lawmakers will take a more considered approach to its regulation on everything from copyright law to taxation, due to the hoopla over SOPA.

Regardless of your thoughts on SOPA, I'd encourage you to consider your stance on intellectual property, especially in light of the fact that most of us are effectively in the knowledge or IP business. Make an independent assessment away from the draconian predictions that range from the end of professionally-produced music and movies, to a Stalin-esque Internet where sites are regularly banned. With an increased awareness of these issues on the part of citizens and legislators, addressing the concerns of all parties around Intellectual Property is a good thing, even if SOPA is the wrong vehicle to do so.


Patrick Gray works for a global Fortune 500 consulting and IT services company and is the author of Breakthrough IT: Supercharging Organizational Value through Technology as well as the companion e-book The Breakthrough CIO's Companion. He has spent ...

Editor's Picks