Running scared from pirate wranglers

The internet industry scored a tactical victory this week with the blackout of sites such as Wikipedia and Reddit, and the White House's decision to oppose parts of two bills intended to curb the file-sharing of films and copyrighted material.

“Piracy rules,” tweeted Rupert Murdoch angrily.

I hope not because Silicon Valley damages itself with its persistent scaremongering over efforts to crack down on piracy. By refusing to engage in a serious effort to prevent it - instead equating copyright enforcement with censorship, or with “breaking the internet” - it undermines its credibility.

The Digital Millennium Copyright Act of 1998, which it now holds up as a model, was awfully dangerous back then; music companies were stupid to “sue their customers”; governments that halt internet access to persistent file-sharers are breaching their human rights. And now the Stop Online Piracy Act (Sopa) merits a blackout by websites that it isn't meant to affect.

“Don't limit your opinion to what's the wrong thing to do; ask yourself what's right,” the White House's internet advisers warned on Monday. So far the industry has ducked that challenge, preferring to stick to its trusty, empty talking point: “Piracy is bad but [fill in the blank] is the wrong solution.”

There are exceptions. Google, despite using its US homepage in protest at Sopa and the Senate's Protect IP Act - and Mr Murdoch's tweet that it is a “piracy leader” - has a serious position. It believes that rogue sites should be starved of payments and advertisements.

Mostly, however, the industry's stance is exemplified by Union Square Ventures, the New York-based venture capital group, which plastered “Stop Censorship” over its logo. Fred Wilson, a partner, argues for ditching Sopa altogether and sticking with the DMCA because internet start-ups “are the golden goose of the economy and we cannot kill the golden goose to protect industries in decline”.

The logical flaw here is that the DMCA is a domestic law that does nothing to halt the abuse targeted by Sopa and Protect IP - mass piracy through foreign rogue sites. From a tactical point of view, Silicon Valley has done a fine job of conflating the two but that is misleading.

Indeed, it is because the DMCA has been effective in limiting the copyright abuse that was once rampant on sites such as Google's YouTube that pirates have moved offshore. From cyberspace - out of reach of the DMCA or domestic enforcement - torrent sites provide free downloads of others' films and music, making money through subscriptions and advertising.

Not only is this wrong but it is a scourge on investment in creative work. I don't trust the statistics thrown around by either side about how precious they are - does the US really lose $US58 billion in economic output annually from piracy, as the Motion Picture Association of America claims? - but authors, songwriters and filmmakers clearly suffer.

Writers and publishers such as Cory Doctorow and Tim O'Reilly argue that they benefit from free distribution of their work as a form of free marketing. That suits them but it should be an individual choice - copyright has existed in the US since 1790 for good reason.

When Maria Pallante, the US register of copyrights, tells Congress that if it does not address offshore piracy “the US copyright system will ultimately fail”, she ought to be taken seriously. It is inadequate for Silicon Valley to dismiss it as the whining of a rival industry, although there is some of that.

Silicon Valley's biggest rallying cry was that Sopa included (until the provision was withdrawn last week) court-ordered blocking of rogue sites by internet service providers. Civil rights activists such as Rebecca MacKinnon, a New America Foundation fellow, compare this to censorship in China and others claim it would “break” the architecture of the web.

If so, the internet is already broken in the UK, which has blocked child pornography sites through ISPs since 1996. Following a high court ruling last year, Cleanfeed site-blocking technology will be used against foreign pirate sites by BT and other British ISPs.

Indeed, plenty of search engine links are removed and sites blocked in the US, both under the DMCA and anti-counterfeiting and prescription drugs legislation. Go Daddy, a domain name registrar that initially supported Sopa but then retreated, suspended 150,000 sites for illegal or malicious activity in 2010.

The question is not the nature of the technology but whether its use is merited for copyright infringement. That is a fair debate but the UK judge who examined the issue of the right to free speech versus the right to intellectual property protection on the web under the European Convention on Human Rights came down in favour of blocking.

Blocking now appears to have been stripped from Sopa, which leaves other mechanisms such as cutting off payments to rogue sites through credit card companies, and removing US advertisements. If the internet industry wants to demonstrate good faith, it should suggest what might work, not endlessly protest.

Ms MacKinnon rightly points out that overzealous enforcement can harm other liberties - any regime must be balanced. But the absolutist Silicon Valley line that its rights override Hollywood's - “intellectual property is theft”, tweeted John Perry Barlow of the Electronic Frontier Foundation - is wrong.

The blackouts were a dramatic gesture but curbing piracy does not “destroy the internet as we know it”. It would be wiser for Silicon Valley to cut the histrionics and help to fashion a decent law.

Copyright The Financial Times Limited 2012.