Slippery SOPA

Copyright Critics of the failed Stop Online Piracy Act and the Protect IP Act (SOPA/PIPA) have been having some fun with some internal RIAA and IFPI materials regarding the music industry’s anti-piracy efforts that leaked to TorrentFreak last week. Part of the cache includes a PowerPoint presentation delivered by RIAA deputy general counsel Victoria Sheckler to IFPI members back in April (pdf).

The critics are taking particular delight in Sheckler’s acknowledgment that the laws were “not likely to have been effective tool[s] for music.” Here’s the PPT slide summarizing the SOPA/PIPA debate:

While perhaps a bit embarrassing for the RIAA, I don’t find the revelation terribly surprising. The bills weren’t really crafted with music in mind; most of the online piracy the music industry is concerned about occurs over peer-to-peer networks, which were not the targets of the bills.

Rather, the bills were crafted by the MPAA, as a tool against movie piracy. Though P2P networks are responsible for a certain amount of movie piracy, more of it these days involves digital locker services, mostly based outside the U.S., like Megaupload, which were the main targets of SOPA and PIPA. As data contained elsewhere in Sheckler’s presentation show, digital lockers make up only about 6 percent of what the music companies regard as piracy, compared to 23 percent for P2P and 42 percent for ripping and burning of music from friends and family. So no, SOPA and PIPA would not have been terribly effective against the type of online (or offline) piracy of greatest concern to the music companies, because they weren’t designed to be.

Far more revealing in my view is Sheckler’s acknowledgment that the bills were aimed in part at establishing an “important principle regarding intermediary responsibility” for online piracy. As I suggested back in January, one of the principal goals of SOPA and PIPA was to effect a statutory and legal end-run around the safe harbor provisions of the DMCA by creating a new cause of action for copyright owners against web intermediaries:

The whole point of SOPA and PIPA is to create a new statutory framework under which litigation or enforcement actions could be brought against web hosting services but which would implicate intermediaries. The goal is to create a distinct body of case law in which the obligations and incentives of Internet intermediaries are analyzed under a different standard from the growing line of DMCA cases that have broken badly for copyright owners. That obviously isn’t going to happen by bringing more DMCA cases. You need a new law.

The prize at stake is leverage, not liability per se (or enforcement tools as such). The Hollywood studios and other content owners are after a new source of leverage they can use to force Internet intermediaries to deal, on terms more favorable to the media companies than is possible under the DMCA. The goal is to get intermediaries on the hook for something — almost anything — so they will have to bargain their way off.

I think that view is reinforced by Sheckler’s presentation. Google probably thinks so, too.