The Digital Piracy Battle: ‘Both Sides Need to Come to the Table’

by Kenneth Mallory and DeVan Hankerson on February 21, 2012

While it is clear that the nation has not reached consensus regarding the legislation to curb digital theft, most people on both sides of the debate agree that something needs to be done to stop the piracy of copyrighted works online.

Toni Cook Bush, partner at Skadden, Arps, Slate, Meagher & Flom emphasized some of the major concerns voiced in the legislative debate, and suggested that a solution is possible given broad support for copyright in the industry.

“… Parties need to sit down and identify areas of agreement and disagreement … and really focus on concrete solution for bridging gaps of disagreements,” said Bush at MMTC’s recent Broadband and Social Justice Policy Summit.

In the past weeks, the battle over the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA) legislation has intensified, with many organizations expressing opposition to the legislation and several major Web sites participating in a “blackout” to demonstrate against it.

As Bush pointed out, the legislation proposed to give the U.S. Attorney General the power to go after foreign “rogue” Web sites that steal works protected by U.S. copyright laws.  Other provisions of the legislation would call for the Domain Name System blocking of certain Web sites that participate in online piracy.

However, as Bush remarked, opposition to the legislation recently led judiciary chairmen in both chambers of Congress to “shelve their versions of the bill for the time being.”

The main problem with the discussion around the SOPA/PIPA legislation appears to be the “debate among giants,” which seems to obscure the real threat digital piracy poses to the financial viability of entrepreneurial efforts undertaken by minorities.

The outcomes of the SOPA/PIPA legislation impact small and minority entrepreneurs who continue to grapple with the issue of access to capital.  However, a compromise in Congress could mean some relief for content producers who have long complained of the theft of their works and are disadvantaged more when rogue copiers endanger their ability to capitalize on their work product.

Bush underscored the importance of protecting the works of minority content creators, when she said that the crime of digital piracy cost U.S. businesses an estimated $135 billion a year.

“For minority Internet entrepreneurs and others who post online content, it is the unique content they create that allows users to find their sites, which in turn allows them to draw subscriptions and advertising revenue. In a digital age, where any form of content can be reduced to a stream of bits that are sent across the world in less than a second, we all need to consider unique opportunities and threats associated with the inevitable digitization of content,” Bush said.

Bush ended her presentation with an example of how piracy affects small and minority content owners and indirectly pinches the market for diverse content.

“From the perspective content owners and Internet media owners, more users heading to sites hosting illegitimate copies of those articles of videos means fewer eyeballs going to legitimate servers that host their content.  When copies of ‘The Help’ or Tyler Perry’s movies are viewed by a rogue site, the audience for such works from broadcast outlets and [legal] online streaming sites diminishes…Minority oriented content [loses its] luster in the eyes of advertisers searching for a way to target minority consumers,” she said.

From the perspective of the pending legislation and from the perspective of the industries on both sides of the table, piracy is an issue that must be managed differently. The challenge now appears to be deciding how to curb theft in a technologically appropriate way.

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