SOPA and PIPA Miss the Mark Trying to Protect IP Rights on the Internet

 
Public Policy
January 09, 2012 Posted by:

 

For nearly 30 years, Silicon Valley Bank has dedicated itself to supporting the individuals and companies who create disruptive new technologies.  We believe that strong IP rights are essential for innovation. 

The House and Senate are currently considering companion bills – commonly referred to as SOPA and PIPA – which are designed to augment the tools the government and copyright holders can use to combat the theft of copyrighted materials.  Protections for copyrights and other forms of intellectual property help promote the creation and dissemination of original works and are an important underpinning to a healthy innovation ecosystem. 

Yet while the bills’ goals are laudable, as currently drafted they miss the mark in a few important respects.  Overall, we believe they will negatively affect innovation and the continued development of the Internet as a robust, open, and continuously evolving ecosystem. 

Previous legislation, such as the Digital Millennium Copyright Act (DMCA), struck a reasonable balance between the interests of service providers, rights holders, and everyday users.  The current bills establish a new regime that provides for, among other things, the right to shut down Web sites that display infringing material, to filter content, and to fine and imprison infringers and service providers who display infringing material.

Striking the right balance isn’t easy.  As Congress debates this increasingly hotly-contested issue, we think they should be guided by a few core principles:

First, any legislation should reflect the realities of how the Internet actually works.  SOPA and PIPA would mandate Domain Name System (DNS) filtering and redirect communications on the Internet in an effort to identify and block off infringing sites.  This could undermine current security protocols without any positive verifiable anti-piracy impact.  In fact, it could potentially expose the general public to additional security threats.  This is similar to covering the streets with speed bumps to combat a rash of burglaries.  It may slow down the burglars, but the brunt of the impact will be felt by people and businesses that aren’t doing anything wrong.  And it won’t take long for the “bad guys” to find ways to maneuver around these barriers, or move to new neighborhoods.

Second, policies should be based on facts – not rhetoric.  There’s a serious risk that both sides in this debate will talk past one another and attempt to rely on political strength, rather than the strength of their ideas.  That won’t lead to a good outcome.

Third, legislation should protect and promote the Internet’s continued evolution.  Washington shouldn’t dictate technological solutions, and it shouldn’t pass a law that will undermine existing technologically-based security solutions.  Washington also shouldn’t create a regime in which legitimate parties are nominally free to innovate, but for all practical purposes are held hostage by burdensome monitoring obligations, expensive investigations, or costly litigation.  There are a vast number of smaller content producers, consumers, and online service providers who use the Internet to create, disseminate and consume new, disruptive technologies and a wide array of content from disparate sources.  The entire fabric of the Internet could be unraveled if these parties face too much uncertainty – and too much potential exposure – to innovate.  DCMA’s current notice and takedown scheme, and its safe harbor for service providers, strike a better balance by distinguishing true rogue players from inadvertent bystanders, giving much-needed certainty to the latter. 

Fourth, while Congress shouldn’t dictate technological solutions to piracy, it should create a regime that favors technological solutions over legal remedies.   We all share an interest in combating online theft, and copyright holders can and should be part of the solution.  Legislation should provide strong incentives for copyright holders to adopt (and continually upgrade) the technological tools they use to distribute digital content securely.  This is particularly true for larger copyright holders, who typically control the information they own and provide that content over their own channels.  However, legislation should not punish channel providers and smaller content producers.

Finally, legislation should reflect the core American value of free speech.  Under SOPA and PIPA, providers would have strong incentives to remove copyrighted material – even material that may be subject to fair use – to avoid potentially grave consequences.  In the end, overshooting the mark will lead to less content and a less robust exchange of ideas.

We live in a world in which the way we create, disseminate and use information is changing in dramatic ways.  There’s no question:   change is hard.  But it has also unleashed powerful new ways of working, communicating, and enjoying content. 

We encourage Congress to approach the issue of digital theft in a way that will not threaten innovation, stifle creativity, and undermine people’s lawful access to online information.  It’s fine to want to get the pirates, but Congress needs to make sure it doesn’t end up hurting those caught in the crossfire instead.

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