SOPA and PIPA: What It Could Mean for Your Blog

Yesterday, Pink Ribbon Blues joined with 115,000 websites that blacked out their content in solidarity with a viral Internet protest in opposition to two bills, the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA). While the bills were originally written to apply to foreign sites alleged to pirate music and movies or sell counterfeit items, the real concern for protesters is that the bills now, if passed, could also limit free speech and prevent user-generated content on foreign and domestic sites by using claims of copyright infringement. Policy analysts from the New America Foundation’s Open Technology Initiative argue that both PIPA and SOPA “would create a national firewall by censoring the domain names of websites accused of hosting infringing copyrighted materials. This legislation would enable law enforcement to take down the entire tumblr.com domain due to something posted on a single blog.”

Copyright infringement is serious. I would not want someone to present a chapter of my book as their own. Yet any blanket narrowing of public access, information, and speech is cause for concern. As a social scientist, cultural analyst, blogger, and believer in the adage, “information is power,” I rely on the fair use of copyrighted (and non-copyrighted) content to do my analyses and communicate them to the public. Assessing cultural trends through advertisements, photos, speeches, works of art, research articles, and so on, is at the center of what I do. My work, much of it, is based in rights to “fair use.” If you think about it, yours may be too. After all, if we couldn’t rely on the work of others as fodder for our own thinking, there would be no intellectual freedom. No creativity. No experimentation. No analytical power.  No innovation. No progress. Everything is built on what has come before—an amalgamation of ideas, re-worked.

Lawrence Lessig explains it well in his book, “The Future of Ideas: The Fate of the Commons In a Connected World.” Here is an excerpt:

The content an author must draw upon varies with the “writing.” Some part is new—this is the part we think of as “creative.” But as many have argued, we’ve come to exaggerate the new and forget that a great deal in the “creative” is actually old. The new builds on the old, and hence depends, to a degree, on access to the old. Academics writing textbooks about poetry need to be able to criticize and hence, to some degree, use the poetry they write about. Playwrights often base their plays upon novels by others. Novelists use familiar plots to tell their story. Historians use facts about the history they retell. Filmmakers retell stories from our culture. Musicians write within a genre that itself determines how much of the past content it needs to be within that genre. (There is no such thing as jazz that does not take from the past.) All of this creativity depends in part on access to, and use of, the already created.

In our present legal regime, some of this content is free; some is controlled. A poet has a copyright on his or her poetry. Others cannot simply take and reproduce it without the copyright holder’s permission. The same with plays and novels: A play that is close enough to the plot of a novel is a derivative work. Copyright law gives the copyright holder control over these derivative works. Musical chords cannot be controlled; the design of public buildings cannot be copyrighted. These bits of content in these traditions are free, even if the control created by copyright is strong.

But this control is still limited—indeed, it is constitutionally limited. While a poet or author has the right to control copies of his or her work, that right is limited by the rights of “fair use.” Regardless of the will of the owners of a copyright, others have a defense against copyright infringement if their use of the copyrighted work is within the bounds of “fair use.” Quoting a bit of a poem to demonstrate how it scans, or making a copy of a chapter of a novel for one’s own critical use—these are paradigmatic examples of use that is “fair” even if the copyright owner forbids it.

A similar limitation protects the historian. For content to be controlled, it must be “creative.” Facts on their own are not “creative.”

The Doctrine of Fair Use Lessig describes is codified in U.S. copyright law in Section 107 (title 17, U. S. Code). A fact sheet from the U.S. Copyright Office outlines four factors to consider in determining whether a particular use is fair:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. The effect of the use upon the potential market for, or value of, the copyrighted work.

The fact sheet goes on to say that, “The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.”

The vagueness and ambiguity of the above considerations make it difficult to know what is, and what is not, fair regarding the use of copyrighted material. Yet such vagueness and ambiguity are vital when considering Lessig’s historical and contextualized description of creativity. Clearly, the freedom to think, communicate, and create is always loosely based on the thoughts, communications, and creations of others. Yet as technology evolves faster than societies can learn to manage it, the tug of war between freedom and control on the Internet tilts ever more toward control–over the exclusive ownership of ideas and the freedom and opportunity to express them.

What does an erosion of the Doctrine of Fair Use through changes to the legal code (be it SOPA, PIPA, or some other legislation) mean for those of us who use the Internet regularly to express ourselves in words and images, to enlighten or engage in dialogue and social critique, to rouse the rabble for social justice? If a trademarked/copyrighted image or text makes its way to your analytical purview, are you too at risk for losing your blog and domain name while court orders and legal processes tick slowly and expensively by? Would that be fair? Regardless, it could become legal.

UPDATE: On January 20, 2012 SOPA and PIPA were dropped by Congress — the votes have been cancelled and the bills are tabled for now. 

Additional Resources:

• “No Wikipedia? What if the Internet Went down?” by Sarah El Deeb and Jocelyn Noveck, Associated Press
• “SOPA vs. PIPA: Anti-piracy bills, uproar explained” by Andrew Couts, Digital Trends
• “The big hammer of SOPA, PIPA will only crush Internet freedom” by Andy Ihnatko, Chicago Sun-Times.
• “In Fight Over Piracy Bills, New Economy Rises Against Old” by Jonathan Weisman, The New York Times.
• New America Foundation Open Technology Initiative formulates policy and regulatory reforms to support open source innovations and facilitates the development and implementation of open technologies and communications networks.
• Lawrence Lessig’s insightful book “The Future of Ideas: The Fate of the Commons In a Connected World” is available for FREE download.
• Fight for the Future is a non-profit helping to organize the historic strike against the web censorship bills SOPA and PIPA.
• Sopa-Strike Timeline
• Fight for the Future VIDEO.
• Toolkit for Anti-SOPA activism from the Electronic Frontier Foundation.
• List of senators against, in support, or on the fence regarding PIPA.

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