Brian Dunlap is no stranger to the casualties of illegal downloading. One of the clients at his digital media firm managed to sell 10 copies of an instructional DVD before it was posted online and downloaded 10,000 times for free within a matter of weeks.
In the controversy over the Stop Online Piracy Act, a rift has emerged between two camps of small business owners: Web entrepreneurs whose businesses rely on traffic from links to content they did not create and the independent artists and others who produce the material and want to be paid for it.
Whether the measure becomes law - the bills’ momentum has been stalled by mass online protests - does not erase the fact that the need for stronger anti-piracy legislation remains, say some content makers.
“SOPA is overreaching and needs some work,” said Dunlap, who is chief operating officer of Excelsior Media in Las Vegas, which provides video support to independent film makers. “But what’s getting lost is that the protections we have now are inadequate. We’re very frustrated that opponents are guiding the dialogue.”
Some companies that support stronger anti-piracy laws have faced threats after SOPA opponents found them on a widely-circulated Google doc of alleged supporters. The owner of a stock-photography whose name appeared on the list began receiving e-mails like this one:
“I AM INFORMING MY FAMILY AND FRIENDS THAT IF THEY SUPPORT your firm I WILL MAKE LIFE DIFFICULT FOR THEM.”
“Things are getting nasty,” she said in an e-mail interview. She commented on the condition of anonymity to avoid receiving further attacks.
While current copyright law puts the onus on content creators to spot copyright infringement and go after offending Web sites, SOPA and its companion legislation in the Senate called the Protect IP Act would shift the responsibility to search engines and Web sites by allowing the federal government to block sites that host copyright-infringing content. Detractors say that would be unduly burdensome for both large sites and for Web start-ups, and that the bills’ language is open to interpretation on how that would be handled.
“The language around SOPA and PIPA is so vague, it could even apply to sites like Reddit,” said Alexis Ohanian, who co-founded the social-news site Reddit and several other start-ups. Ohanian has been leading the charge against SOPA and PIPA. “When you’ve got legislation written by lobbyists and not technologists, it’s a recipe for very bad things.”
For now, it appears the siege of the Web warriors was successful. The demonstrations, black-outs and viral Web videos have taken SOPA from relatively obscure to wildly unpopular within just a few weeks. The bill’s sponsors have backed away from key provisions, the White House practically denounced it outright, and Majority Leader Eric Cantor (R-Va.) promised the House will not vote on the measure “unless there is consensus on the bill.”
But while SOPA may veer too close to censorship for comfort, some content creators say it’s still an improvement over current protections. They feel the Digital Millennium Copyright Act, which SOPA was intended to replace, is not enough to keep their photography, videos and music off of peer-to-peer sites, where it can be traded freely.
Keatly Haldeman, CEO of the Los Angeles music publisher Pigfactory USA, said his company’s revenues, like those of the rest of the music industry, have taken a hit as illegal downloading has become more widespread. Much of the company’s earnings come from a royalty of 9.1 cents that’s supposed to be collected on each song sold.
“The musicians coming up now trying to make a living, 80 percent of them are struggling because the old model doesn't work anymore,” he said. “When American content creators are not able to survive because their business is being pirated, that hurts everybody and that's a loss of tax revenue.”
Trade groups like the International Federation of the Phonographic Industry attribute job losses and fewer breakthrough artists to digital piracy, and the motion picture and music industries have spent millions lobbying in support of SOPA and PIPA.
The stock photography company owner said she mainly takes issue with foreign groups that take her images for their own sites and emblazon them with their own logos. She said the Digital Millennium Copyright Act, which is the current recourse for such copyright violations, hasn’t been effective at curtailing the issue. Under the DMCA, content creators can send a letter to infringing sites demanding that they take down the work or face legal action.
“Even after we sent them a cease-and-desist take-down letter, the images appeared again within a month,” she said. “The images continue to migrate from one URL to another. As a small business owner, there’s not a lot we can do.”
Michael Wu, general counsel with the Arlington-based language software company Rosetta Stone, said that rogue foreign sites advertise pirated versions of the company’s software on Google and then sell it to unsuspecting U.S. customers. He said U.S. Customs and Border Protection has seized at least 400 pirated versions of Rosetta Stone software coming from overseas last year.
“These people copy pages right off our Web site,” he said. “Customers think they’re Rosetta Stone authorized dealers, and then they try to return the pirated software when it doesn’t work.”
Rosetta Stone has hired three staffers to monitor for the rogue sites, but Wu said the problem could be alleviated if Google and other search providers would self-police. He thinks measures like SOPA and PIPA might be the only way to force search engines to do so.
Dunlap’s company also employs several people to monitor for sites that illegally host his clients’ content and send them take-down letters, a task he describes as too onerous and expensive for most small content shops to do on their own.
“The DMCA sets down a number of conditions that copyright holders have to abide by in order to get something taken down,” he said. “It’s something someone needs to be trained in because if you send incorrect take-down notices, it’s a liability. Then you have to follow up to see if they actually took it down. It’s all on the copyright holder to do that.”
Even when he catches an online pirate, Dunlap said the offending site quickly moves their hosting offshore, where the DMCA has virtually no impact.
“SOPA is an extreme in the interest of copyright holders. DMCA is in the interest of [Internet service providers],” he said. “Either extreme is unappealing.”
One potential middle-ground solution could be the Online Protection & Enforcement of Digital Trade Act, which was proposed last week by Rep. Darrell Issa (R-Calif.). OPEN would take a more targeted approach by placing jurisdiction for copyright violation complaints against foreign Websites with the International Trade Commission, rather than with the federal courts.
Wu said the ITC process would still be too cumbersome for most smaller content creators. But it seemed more palatable than SOPA to a hardcore techie like Ohanian.
“Because PIPA and SOPA are so bad, we’re focused on raising awareness about how terrible they are,” he said. “But OPEN is a much more surgical strike, following the money instead of offering technical fixes.”
But to Ohanian, the best bet for content creators is simply to accept that downloading will occur and to innovate around it. He points to successful Web artists like Randall Munroe, who makes money off of merchandise while publishing the popular Web comic XKCD for free.
“Build your business with the Internet in mind -- that’s the best approach to take. There are tremendous advantages to working on a powerful platform like the Internet,” Ohanian said. “Even though there are some disadvantages.”