Caddyshack and Attempts to Stop Online Piracy
One of my all-time favorite movies is Caddyshack. With Rodney Dangerfield, Chevy Chase and Bill Murray, it’s 98 minutes of cheesy comic gold. And one of the best parts is Murray’s Carl Spackler, the unhinged greenskeeper who embarks on an increasingly-insane campaign against a gopher that is spoiling his handiwork.
In Spackler, I see a stunning resemblance to the RIAA, MPAA and other opponents of online piracy who have embraced a “solution” to their problem that will prove far more damaging than the problem itself. Carl’s answer to his gopher problem is plastic explosives; in our online setting it is the embrace of legislation that would crater much of the internet in an attempt to stop piracy.
Others have provided a comprehensive rundown of the many problems that “SOPA/PIPA” (the “Stop Online Piracy Act” in the House and the “Protect IP Act” in the Senate) would cause (here’s a deep look at some technical issues, and here’s Lawrence Tribe’s take on why SOPA is unconstitutional), but these are the most obvious impacts:
• Government agencies would have the ability to force “intermediaries” to stop providing access to, linking to or serving ads upon “foreign infringing sites.” Such sites can be merely those that “facilitate” the infringing of IP rights. Many devices and websites – think VCRs, disc burners, YouTube – may “facilitate” the infringing of rights despite having clear non-infringing uses. Think about what this means for Google, Wikipedia and a host of other sites designed to provide users with access to a wide range of information.
• The current balancing of rights embodied in the DMCA – which allows sites hosting third party content to do so without concern over third party liability, as long as they honor the DMCA notice and counter-notice provisions – would be upended. IP rightsholders would have the ability to target a website’s financial resources, by sending notices of infringement to financial intermediaries (like payment processors and ad networks) and forcing them to choose between continuing to do business with the site in question or risk liability.
If you think these concerns are overstated, you haven’t been paying attention. Viacom continues to fight a court battle to make Google liable for copyright infringement for content posted on YouTube. Rightsholders have consistently overstated their rights and ignored fair use, forcing the courts to read into the DMCA an obligation to at least consider fair use before firing off a takedown notice. And for a preview of just how far government agencies and rightsholders may take the open-ended language in SOPA, like look no further than the Computer Fraud and Abuse Act. Originally designed to counter foreign espionage and hacking, its uses have been grossly expanded by government prosecutors and private parties alike seeking to bring criminal liability to such everyday issues as using a workplace computer for non-work activities or violating a website’s Terms of Use.
What’s more, SOPA/PIPA is a solution looking for a problem. Like the gopher, who offends greenskeeper Carl’s sensibilities but does little to disturb the pristine fairways and smooth greens of the golf club, online piracy is not a major problem. Yes, the RIAA and MPAA throw lots of numbers around about the billions of dollars and millions of jobs lost to piracy, but these fancies have all been thoroughly, completely debunked.
And just as Carl’s nemesis has a vast network of underground tunnels in which to escape to, thus thwarting even his most extreme efforts, online piracy can easily route around the roadblocks thrown up by SOPA/PIPA – leaving collateral damage, with nothing to show for it.
Every society has to make choices about which evils it chooses to address via regulation. And it must always be careful to ensure that the costs of regulation don’t outweigh the benefits.
Because who in their right mind would blow up a golf course in a vain attempt to kill a few gophers?
[n.b. - yes, in a more rational work of copyright, I would be able to embed higher-quality video clips]
