Taking The Shrill Out Of The SOPA Piracy Debate

Recent talk of an internet piracy plan has reached such a pitch that an outsider could be forgiven for thinking participants were discussing immigration or terrorism.

In case anyone missed it, the fuss is about the Stop Online Piracy Act, a bill that would deputize search engines, advertisers and other internet players as part of a campaign to shut down rogue websites. These “rogues” are foreign sites that sell unauthorized versions of US products like movies, shoes or pills.

The issue isn’t that complicated. At its core, it’s about deciding the role of different industries in monitoring and enforcing intellectual property rights. Unfortunately, the debate so far has been all about hysterics and hyperbole. SOPA supporters are casting opponents as free-loading, unpatriotic criminals. Meanwhile, the bill’s detractors say that brand owners want to bring about Chinese-style censorship and the “end of the Internet.”

The problem with this rhetoric is not just that it’s inaccurate but that, after a point, it’s boring. The SOPA screaming attracts partisans but few people who want to discuss a balanced approach to the piracy problem.

SOPA critics, for instance, rarely concede that US companies have a reason to be upset about these websites. If you’re curious, here’s one where you can buy fake Tiffany stuff from China. And here’s one registered in Montenegro where you can download nearly any song, book or movie for free.

Many Americans feel intuitively there is something wrong with these sites. That’s why SOPA’s sponsors have had such an easy time getting bipartisan support for the bill –the public doesn’t like the idea of foreigners stealing intellectual property from US companies. SOPA critics don’t seem to get this. While they have produced numerous tirades about greed and censorship, they have said precious little about what to do about the offending websites.

Unfortunately, the sins of the other side have been even worse. Brand owners and the content industry have used the rogue websites as a pretext to push for a legislative moon shot in the form of SOPA. SOPA supporters won’t admit that the bill, as drafted, is about much more than foreign websites and that it could have a series of harmful consequences for technology and free speech. Instead, they are doubling down on press releases about protecting America from crime.

Senator Ron Wyden has tried to break the impasse with a rival piece of legislation that would vest new enforcement power in the International Trade Commission. The proposal, however, only seems to have triggered yet more overwrought press releases from SOPA supporters. And in any case, the ITC scheme could prove feckless in practice (see Professor Eric Goldman’s thoughts here).

Any real progress in the piracy debates will ultimately require a shift not just in substance but in tone. This would mean SOPA opponents acknowledging the problem (or even the existence) of the foreign websites. In turn, brand owners and their allies, including the Chamber of Commerce, should stop using the websites as a pretext to ram a galaxy of questionable measures through Congress.

Alas, a rational public discussion on intellectual property enforcement for now seems about as possible as a calm chat about the Mexican border.