Not that anyone one has asked for my opinion but I have been thinking a lot about SOPA and PIPA (not Kate Middleton’s younger sister). This may all be a non issue now that the senate has postponed action on the legislation. However, I have been troubled because I have not been able to sort out my true convictions in the debate.
On the one hand, as an intellectual property lawyer, I wholeheartedly believe that we must do everything we can to stop copyright infringement. On the other hand as a believer in the First Amendment, I see that this proposed legislation is way too broad. As one commentator pointed out, SOPA has the potential to create a giant firewall around the United States. I have friends who work in China and I know from their experiences what true internet censorship looks like. Further, the music industry may slowly be on the path of recovery. I don’t always agree with the writer Bob Lefsetz but I think he has a point when he says that in the future, music is probably going to be delivered by some subscription based service and that what we’re seeing with Spotify and Pandora is that people are willing to pay for music delivery; not everyone is a thief. If there is validity to this point maybe we should move slower in enacting laws that have the potential to be so damaging to the growth of the internet.
I have to temper all of my First Amendment liberalism and idealism with some reality though. I was just thinking about how some political parties can consistently get people to vote against their own interests by refocusing the debate (e.g. “why should job creators have to pay taxes? “). I have to realize that my income has taken a hit over the past decade along with many of my clients because of the decline of the music industry. We can’t blame all of this on illegal downloading (not by a long shot) but piracy has put a lot of people out of work.
So, ultimately, I have to believe that more needs to be done to stop internet piracy. But the question might be this: Is our existing copyright law actually strong enough to be used to fight worldwide copyright infringement? It just might be. I read this morning that the Justice Department was able to shut down Megaupload, a notorious international facilitator of copyright infringement. This was based on using existing copyright law. I wonder if more study should be done into beefing up enforcement of our copyright law instead of passing new potentially hazardous laws.
As I tell my copyright law students, the law is always going to lag behind technology but I happen to believe that our US copyright law is pretty vigorous and capable of protecting intellectual property without necessarily creating new laws.