A SOPA Mess
The creative industries have the ear of the US government right now - but they're whispering the wrong things
There are certain topics that it's extremely difficult to discuss intelligently and reasonably. Every walk of life has its own version of these - immigration, for example, is almost impossible to discuss in British political circles without rapidly being mobbed by a crowd of straw men and buried under the sheer weight of prejudices masquerading as logical arguments, with both sides of the debate equally guilty of rapidly dragging it down into a nasty gutter brawl.
In the games business, piracy is one such topic. A great many words are expended on the question of piracy, of its impact and of possible solutions to the problem, and not very many of them are remotely useful. "We need, as an industry, to have a full debate about piracy" is a line you hear every now and then at conferences, which is simultaneously totally true and a completely meaningless statement. It's not that there is no debate around piracy, nor is it the case that there aren't a lot of voices being heard. Rather, it's the case that the debate isn't very good and most of the voices are shouting and stupid.
It's not that there is no debate around piracy. Rather, it's the case that the debate isn't very good and most of the voices are shouting and stupid
Never has this dismal state of affairs been more apparent than in the discussions around SOPA, the USA's latest legislative effort at protecting copyright online. Any discussion around SOPA rapidly degenerates into two polarised sides with precious little common ground between them and precious little logic supporting their arguments. On one hand, defenders of SOPA shrilly exclaim that "something" must be done about copyright, and decry opponents of the bill as thieves and anarchists. On the other, opponents of SOPA characterise the bill's supporters variously as corporate shills, luddite dinosaurs, and profit-seekers so blinded by avarice that they can't see the dangers posed to free speech and expression by the bill's measures.
The problem is that there's a measure of truth on both sides of the argument, which gets completely buried by the polarised nature of the debate. Something does need to be done about the scale of piracy, absolutely - it just might not be legislative in nature and definitely needs to be more considered than a knee-jerk reaction from terrified industries. Many of the opponents of SOPA are unhelpful in that they promote an unrealistic view of a world where everything digital is available for free, and in doing so further ghettoise those on the other side of the debate.
Yet the opponents of the bill are themselves correct about two very important (and seemingly contradictory) points. Firstly, SOPA won't work. It will do precious little to impede internet piracy, which remains at the cutting edge of distribution technology, far beyond the reach of any of the measures enshrined in the law. The Internet itself militates against attempts to restrict content distribution - it's now a cliche but remains entirely true to say that the distributed architecture of the network, originally designed to allow military communications to continue in a time of nuclear war, interprets censorship as damage and routes around it accordingly.
Secondly, while it won't impede piracy in any meaningful way, SOPA's provisions could have far-reaching consequences for freedom of expression online - something which has been increasingly under threat in recent years both from censorious approaches from national governments and from corporate efforts to limit "net neutrality", in effect threatening to create a multi-tier Internet in which not all traffic is treated equally and, ultimately, not all users may have access to all services.
The basic provision of the legislation, which has caused so much controversy, is that it allows websites to be "shut down" without any judicial oversight, on the mere accusation of hosting copyright material or enabling piracy. I say "shut down"; the actual provision allows for the DNS system, which resolves a website address like "www.gamesindustry.biz" into a computer address like "188.8.131.52", allowing the network to find a route to that resource, to be shut down for specific sites. Were this site to be shut down, for example, it would actually still be on the Internet and accessible at the numeric address, but the human-readable domain name would stop working.
Anyone with the slightest technical knowledge can see how this is largely a pointless measure in stopping piracy - many popular piracy methods don't even rely on websites hosting files any more - but could have huge implications for freedom of expression and, due to the lack of judicial oversight, serious potential for abuse. We already see earlier efforts at copyright protection being routinely abused, as in the steady flow of cases in which copyright holders have unfairly and abusively asserted claims over material on YouTube or other websites which either doesn't belong to them, or is legitimate parody or simple fair use. SOPA would give a much blunter and more damaging tool to the kind of firms engaged in this behaviour.
The ESA withdrawing its support would utterly infuriate those publishing and development executives who rage at their own impotence in the face of BitTorrent and its ilk
Those two factors are key reasons why many of the more savvy entertainment companies have been backing away slowly from SOPA. They are caught between a rock and a hard place, and I have more sympathy than most for the position of organisations like the ESA - which has been left as the games industry's official pillar of support for the deeply flawed bill, even after most major publishers have withdrawn their seal of approval. Few in the games business has argued that SOPA is good law, or even that it'll actually work - but there's a sense of frustration and anger at the scale of internet piracy, and that, sadly, translates into a burning desire to do something, anything at all, to combat the tide of copyright transgressions online. The ESA angers the public and fails to represent many of its members by remaining an official supporter of the bill, but withdrawing its support would utterly infuriate those publishing and development executives who rage at their own impotence in the face of BitTorrent and its ilk.
It's incredibly important, at this juncture, for more moderate voices to be heard. A lot of work has been done in the USA in lobbying a bill to support copyright industries through to this point, and nobody wants to waste that effort, but the bill on the table right now is the wrong one. The solution to online piracy simply isn't going to be a legislative one, at least not in terms of the kind of negative legislation that cracks down on sites and users. There just isn't any technical way of doing that effectively - not without imposing the sort of censorship and invasion of privacy that all of us so deplore in nations like China or Middle Eastern dictatorships. Nobody should be willing to go that far in order to protect the revenue of copyright industries - not ever, and certainly not when there are other ways forward.
Yet with the legislative support of the US government, and of the European Union which will inevitably tamely follow the lead of whatever is passed in SOPA, think what else could be accomplished. Industries need to find new distribution and revenue models, and to weather the storm as they move to systems which discourage piracy or render it irrelevant. Government could support that rather than carrying out pointless crackdowns on offshore websites - and in the process, they'd be helping to build up a new digital economy, which would be rather helpful given the present macro-economic climate.
We have the ear of the US government right now, but SOPA in its present form isn't the right thing to be whispering into that ear. When the UK passed the broken, pointless Digital Economy Act in the dying days of the last government, I lamented that the bill failed to live up to its name - it aimed at supporting old, dying business models in the face of the emergence of a truly digital economy, when it should instead have found ways to help British business to transition to the future in rude health. SOPA makes the same mistakes on an even grander scale. The games business has a unique opportunity to make this bill and the work behind it into a real opportunity for copyright industries, rather than simply another command of Canute, demanding that the tides stop even as the waves impassively advance.
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