Online piracy is not our problem. In fact, it is not a problem that Congress should be addressing at all.

In nearly all the responses to the recent SOPA/PIPA blackout I’ve read recently, from both sides, there is a disturbing undercurrent and dangerous assumption being made about the legislation – that somehow it is necessary on some level for Congress to address piracy, and that this round of legislation is just too heavy handed and needs to be tweaked. Even those calling for the death of SOPA/PIPA entirely often couch their statements in a “clearly, piracy is a problem that needs to be addressed but” disclaimer. This frame being presented as conventional wisdom is wrong, and needs to be killed, dead, dead, dead.

This editorial from the New York Times is an excellent example of this. For the most part, it rightly points out the issues with SOPA/PIPA and is, if anything, framed around the notion that the lagging support for them is a good thing. However, creeping in near the end is this statement:

The Internet companies now have the responsibility to come up with a workable alternative that gives owners of intellectual property rights better tools to stop piracy by Web sites located in faraway countries. These sites get some 53 billion visits a year, more than Google or Wikipedia. Yet they are outside the grasp of American law.

How is this Internet companies’ responsibility? Why should the burden fall to them to protect private companies IP? Will the MPAA pony up and pay for me to defend our registered trademarks? This assertion is ridiculous, that somehow Internet startups and operators are now on the hook for solving an organization’s problems who spent 53 millions dollars in lobbying last year to get their own custom legislation passed? I’m sorry, but are you kidding me?

Because actually, no, online piracy is not “our” problem. It is not the federal government’s problem. It is not my problem, and it is very likely not your problem either. It is not the Internet business sector’s problem, and it is not the problem of bloggers or website operators. It is the MPAA’s problem and it is the problem of content producers to defend their content, and we cannot be duped into doing their job for them and footing the bill at the same time.

The primary defense made by pearl-clutching proponents of the heavy handed and special interest driven legislation is, at it’s core, fallacious. The argument that by not protecting private companies’ intellectual property from online piracy we are costing American jobs and curtailing economic growth on the whole is absurd. So, you are telling me that all of a sudden the users downloading illegal content will suddenly pony up money that they were not spending before once these sites are shut down? And then, once that happens, the MPAA is going to pump all that money right back into the “economy” and then, uh, I guess jobs happen?

Give me a break. Sounds like a Paddy’s Bucks scheme to me.

This legislation does nothing for the economy or job growth, it merely gives the MPAA and RIAA and other special interest media conglomerates tools to bully and drive smaller operators out of business and off the Internet and forcing others to bear the cost of doing so. But worst of all, the MPAA knows this, so they, like their smaller cousin the RIAA, turn to litigation to get their pound of flesh. And they’d like to force Internet operators and taxpayers to foot part of that bill, the economic impact of which will, in my opinion, actually be a net negative.

Don’t get me wrong, I don’t think that piracy is right, or that theft of intellectual property should be defended, I just think part of the cost of doing business as a content producer is defending and controlling access to your content. The MPAA’s solution is just lazy, and greedy, and unimaginative. Just off the top of my head I can think of two content producers who, with a little innovation, had great success with the release of their content online without resorting to litigation or bearing the cost of hunting down pirates.

I’ve always suspected the economic impact numbers presented by the RIAA, MPAA and various other research organizations were at worst overblown and at best based on poor models. I admit my analysis is anecdotal and based largely on intuition, but I am also not alone in it. Tim O’Reilly, founder of O’Reilly Media, expresses similar sentiments in his recent post about SOPA/PIPA, specifically he says:

In my experience at O’Reilly, the losses due to piracy are far outweighed by the benefits of the free flow of information, which makes the world richer, and develops new markets for legitimate content. Most of the people who are downloading unauthorized copies of O’Reilly books would never have paid us for them anyway; meanwhile, hundreds of thousands of others are buying content from us, many of them in countries that we were never able to do business with when our products were not available in digital form.

But the MPAA would have us believe they are not making a dime due to piracy, and they have been forced to come to Washington hat in hand to ask for help. This, from the same organization that, in testimony before Congress in 1982 issued the hysterical statement, “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

We all know how that worked out.

Unfortunately, we are hearing much of the same today from the MPAA in this debate, and even more disappointingly from MPAA spokesman Senator Chris Dodd (who I worked for as CTO of his Presidential Campaign in 2007). Sorry Senator, I think you are right on a lot of issues, but on this you are dead wrong. The abuse of power you speak of is actually on the side of the monied interests you promised not to represent when you left Congress, not on the side of internet operators who are defending their rights to be heard.

Ultimately, the SOPA/PIPA legislation is not only bad but is also unnecessary. The MPAA and content producers have legal tools in place already, primarily the DMCA, which is already effective in protecting copyright infringement online. I know this, because as a web hosting provider we deal with DMCA take down notices, and comply with them, because they are fair, provide a mechanism for responding to false claims of infringements, and put the burden of enforcement primarily on the copyright holder, not us.

Another argument I’ve heard from proponents of SOPA/PIPA is that the legislation only applies to foreign operators. Honestly, if that were true, then how could this possibly be enforced by domestic operators? If truly the only parties affected were overseas, then why pass legislation in the first place? The answer is that this is not true. The pirates may be overseas, but again, the parties who would have to bear the costs of developing and maintaining the technology to deal with them would be domestic. I can ensure you, the MPAA would not spend the millions they have on lobbying for this legislation if they did not have a clear idea what they would be able to accomplish and who it would effect. They are merely trying to play a shell game with us – we should stop playing and realize that we can walk away from the table entirely.

The Times editorial I mentioned above closes with “We are happy that the drive to pass antipiracy legislation has slowed enough that Congress might actually consider all its implications carefully. Lawmakers can now act wisely to create tools that can help combat the scourge of online piracy without excessive collateral damage.” I’d prefer it if lawmakers acted wisely to address the issues of millions of Americans who are out of work and struggling to survive in the worst economy since the Great Depression and stopped wasting time on special interest legislation that will not just fail to help in our recovery, but runs the risk of doing the opposite altogether.