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Two kinds of piracy

January 23, 2012

Just a quick follow up on the discussion of SOPA; people keep asking me what kind of legislation would be more appropriate than SOPA and PIPA, and that might have a better chance of gaining the support of the technology industries, users, and Congress. I’m not in the business of writing laws, but as a start, my sense of it is that there are two kinds of infringement: first, there are underground sites and networks dedicated to trading copyrighted music, software, games, and movies; they are determined to elude regulations, they often move offshore or spread their resources across national jurisdictions to make prosecution harder, and they are technologically sophisticated enough to work just with numerical IP addresses, set up mirror sites, and move when one site gets shut down. The second kind of infringement is when some fan, who may not know or appreciate the rules of copyright, uploads a clip to YouTube.

The mistake the entertainment industry continues to make is that they want to stop both kinds of piracy, and they seem unwilling to admit that they are different and start dealing with them as separate problems, with different tools, and with a different “threat level” in their rhetoric. SOPA was problematic in so may respects, but in particular because it tried to address both kinds of piracy at once, and failed to handle either appropriately. The kinds of measures it was suggesting for “rogue, foreign websites” (let’s assume they meant the hardcore piracy networks) wouldn’t be enough: if the DoJ got a court order to remove these sites from Google’s search and the major ISPs, you or I might not be able to access these sites. But determined file traders don’t find them through Google. And SOPA got so much blowback because it also tried to include the second kind of piracy at the same time – which, in fact, is handled relatively well with the “notice-and-takedown” rules that already apply to content platforms like YouTube.

It’s not only that these two kinds of piracy are so different that they require distinctly different approaches: it’s that the entertainment industry needs to let go of trying to squelch them both in the same breath. If they could start distinguishing the two, and make clear that they don’t want to catch up YouTube and Facebook in their net in the process, I think the technology industries will be more willing to develop and uphold gentle norms and procedures for the kinds of infringement that may happen on their networks.

[Cross posted on Culture Digitally]

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