SOPA Leaves Door Wide OPEN for More Bad Legislation

When I was a kid, I loved the X-Men comic series.  My favorite character was Phoenix, I suppose because she was, quite honestly, a kick-butt kind of girl, and believe me, when you’re a picked-on fat kid who moonlights as teacher’s pet, wanting to atomize the jerks around you is a daily fantasy.  This childhood fascination with a lovely villainess led me to learn a fair bit about the phoenix legend at a relatively young age.  The phoenix, for those of you who aren’t up on ancient mythology, was a beautiful bird who lived for 500 years before building a dry nest of twigs and then fanning the nest to flames.  The phoenix was consumed by fire, only to be reborn again from the ashes of its defeat.  Thus we have an interesting story about life cycles, death, and rebirth.

Thanks to the efforts of individuals and businesses across the Internet blacking out for 24 hours, a powerful message was sent to Congress regarding the abominable bill known as SOPA.  I covered SOPA and intellectual property law last week as the blackout was going on, and I’m proud to say that my entry was re-posted on the Center for the Study of Innovative Freedom, which was quite an unexpected honor.  In any case, through the concerted efforts of the indignant masses, it seemed that SOPA was quietly shoved to the corner.  I thought to myself almost immediately that that fight was easy… Perhaps a little too easy.  It seems like whenever the government has a bad idea, it is determined to force it on us, in spite of our protestations and attempts to throw monkey wrenches into the system.  Unfortunately, I was right: it seems that from the ashes of the old SOPA phoenix, a new bill called OPEN is rising, and I worry that this time, defeat might not come so easily.

I had downloaded and read through most of the new OPEN bill, which is relatively svelte compared to its predecessor; OPEN clocks in at 18 pages, whereas SOPA was a heft 78 pages in length, although I suppose both are somewhat short when you compare them to behemoths like the NDAA or the Patriot Act.  In any case, the PDF document ironically reads “Keep the Internet OPEN,” but the reality is that any document that gives the government the authority to shut down websites is doing the opposite of keeping it open, regardless of what the neat print on the paper says.

In a nutshell, a rightsholder can make a petition to have a supposedly offending site taking down for rights infringement.  The ITC will then examine the case and make a ruling.  One major difference between OPEN and SOPA is that SOPA demanded that advertisers and PSPs immediately stop revenue flows to the site, regardless of whether or not the claim proved to be a valid one, whereas OPEN will not make this demand until the site is definitively found to be in violation of the law.

While it doesn’t seem that OPEN is as blatantly bogus as SOPA, most of my basic concerns still exist, and most of them have to do with rent-seeking and the legitimacy of intellectual property, a notion which I am admittedly still debating internally, at least to some degree.  As I wrote in “Against Intellectual Property,” one of the main flaws with this type of legislation is the fact that it is pandering to a group who are seeking to prop up an outdated and ineffective business model.  The entertainment industry has yet to provide us with conclusive evidence that they are really suffering drastic losses due to Internet piracy.  It is impossible to ascertain the supposed losses, since it cannot be proven that individuals who are downloading media for free would have paid for it at all, in the absence of the offending download site.

In truth, all I see here is an attempt to thwart or redirect money supplies to an industry which is hardly suffering.  Should we support legislation that largely exists because a small group is angry that their business model is no longer effective?  The fact of the matter is that the way people purchase and are exposed to media has changed a lot in the past 10 years or so.  It’s a brave new world out there, and it seems more and more like the entertainment industry is afraid to change with the times.  Ultimately, if a site is conducting illegal and legal activities, this legislation would shut down all activity, and then the money from both of those activities is lost, so there is a very real possibility that this legislation will result in net losses rather than gains.  As I stated previously, there is no conclusive evidence that this lost money would be redirected in the way that the entertainment industry hopes.

Although it doesn’t seem that this legislation is nearly as dangerous and nuts as SOPA, it seems to have been created for the same reasons.  This is the unfortunate effect of businesses lobbying for favor in the legislative world – taxpayers are forced to support an industry that either can’t or won’t evolve, and other, healthier businesses with more effective models suffer.  Much like my favorite heroine-turned-arch-villainess, it seems this Internet legislation is the proverbial phoenix that just won’t die.  And if I’ve learned anything from the Phoenix story lines, it’s this: the first story was great, but resulted in a sociopathic maniac who destroyed an entire planet, and the subsequent stories were of far lesser quality, and Marvel ended up degrading one of the greatest characters they ever created for the sake of making a few extra bucks.  I suppose that means of the moral of the story is that when the behemoth that has been created dies, sometimes it’s better just to let her stay dead.

Please take a look at the legislation, if you have a minute.  There are elements in it that I haven’t covered in this article, such as the issue of sites that sell phony drugs and the opt-out option for foreign websites.  

“The OPEN Act: Significantly Flawed, but More Salvageable than SOPA/Protect-IP” by Eric Goldman
OPEN Act PDF File