I interview entertainment and new media attorney Gordon Firemark for a guide on two controversial bills in Congress and the top online video crisis of 2012 – the Protect IP Act (PIPA) and the Stop Online Piracy Act (SOPA), which are threating to censor our free expression and remove our ability to do business with online video.
My video interview with Gordon Firemark on SOPA and PIPA
You can just watch my video interview with attorney Gordon Firemark below, or go right to the article and accompanying videos further below.
Update: Since I first recorded this interview with Gordon, SOPA's sponsors in Congress have removed the DNS-blocking feature for now.
What is SOPA? What is PIPA?
SOPA and PIPA are both bills pushed in the separate bodies of United States Congress as an attempt to combat online piracy and theft of intellectual property.
- SOPA, is the acronym for the "Stop Online Piracy Act," and is also referred to as House Bill 3261, or H.R.3261. It is planned to resume discussion in the House in February.
- PIPA is the abbreviation for the "Protect IP Act," and is the twin bill introduced in the U.S. Senate also referred to as Senate Bill 968, or S. 968. It is planned for discussion in the Senate later this same month.
Colbert-style humor aside, both of these are extremely controversial online piracy bills. Their sponsors and supporters say are meant to provide stricter means of prosecution of online piracy overseas and at home, including "online threats to economic creativity and theft of intellectual property…" Their detractors consider them both to be essentially censorship bills that would cripple our web ecosystem – including the freedom most people currently have to create and share content online, and especially with online video.
How did we get to this?
SOPA and PIPA were lobbied by Hollywood movie producers and major content companies. There are a long list of business interests who are SOPA supporters. According to CNet News, "Both bills are heavily supported by a wide group of copyright owners, including the big record companies and Hollywood film studios.”
AFP News reported last month that the founders of Google, Twitter, Wikipedia, Yahoo! and other Internet giants expressed concern over the two drafts, saying in a open letter that they would "give the US government the power to censor the Web using techniques similar to those used by China, Malaysia and Iran." On January 18, over 7,000 websites – including Wikipedia and Google — will protest anti-piracy legislation currently making its way through Congress. Sites in opposition to the measures will either "go dark" (like Wikipedia and Reddit), or post information to educate visitors about bills.
While not as strong a protest move as Wikipedia or Reddit, a Google spokesperson told Mashable that its homepage will include a link where users can learn more about SOPA, confirming a Bloomberg report. "You won't see a blank page at Google.com on Wednesday, but the company will use its homepage to register its opposition to SOPA.
What would happen if either SOPA or PIPA were ever passed into law.
Imagine our existing DMCA (Digital Millennium Copyright Act) turning into a virtual Frankenstein. They would give the government and even individual copyright owners the opportunity to cut off content that they don't like, presumably it's because they're infringing on someone else's intellectual property (IP)
SOPA or PIPA would give the Attorney General and others the power get a court order which could cut off the flow of traffic and money to the alleged pirate; and essentially, cripple their online operation. It would require payment processors, like PayPal or any of the credit card processing companies – the banks themselves – to cut off services to these alleged infringers simply from the filing of a complaint (before any proof is made).
Again according to CNet News, "The tech sector has claimed that if the bills became law, they would rob the Web of free speech and damage the health of the Internet. Copyright owners charge that online piracy has damaged their businesses and costs workers their jobs.”
For more on this, I recommend checking out the following links:
- Electronic Frontier Foundation: "How PIPA and SOPA Violate White House Principles Supporting Free Speech and Innovation.”
- ComputerWorld – "SOPA/PIPA: Down but not out (yet)”
- San Diego City Beat – "PIPA is the New SOPA”
- Hillicon Valley – "Controversial online piracy bill shelved until 'consensus' is found.”
How this would affect most people involved with online video?
One word: Crippling.
You could end up having your site shut off and access to your payments cut off, merely because somebody alleges that you link to videos that may or may not be infringing. "If you so much as link to a single video that has any IP challenges, or even link to just the site that has any IP challenges, you could have your entire website shut down," says Gordon. "So we can argue around and around about whether or not just linking to a particular video or website say on YouTube engages in facilitates or enables that infringement? And that's really one of the big problems."
"Let's say you are a video blogger, and you review videos and films and things like that. You could end up having your site shut off and access to your payments cut off merely because somebody alleges that you link to videos that might or not be infringing.”
What about YouTube?
As Gordon explained to me, say there's just one video on YouTube, on just a single account by someone that allegedly infringes somebody's movie or other recording, or even just any copyright or other intellectual property. The gigantic problem here is, you don't get your own domain name for a YouTube video, of course; you have to go to YouTube to see your channel.
Take this for example: if you go to the ReelSEO YouTube Channel, you'll see it's YouTube.com/ReelSEO. Now if someone doesn't like what ReelSEO is doing and files a single claim, suddenly not only everybody's access to the ReelSEO channel is gone, but every YouTube channel as well.
What about other major video sharing and hosting sites?
No site will be spared. It doesn't matter what kind of video site it is – whether it's for personal or professional use, entertainment or business, or anything else that you're looking to make public. The same thing will happen to Vimeo and Blip, and all these other video hosting and sharing sites. That also includes all professional video platforms, like Brightcove, Ooyala, and Kaltura, just to name a few. They can all be shut down with a single complaint on a single video, and without any due process coming first.
That's the real danger with this law.
But Won't YouTube and other big video sharing and social media sites be spared?
Gordon says that is a possibility. "YouTube has the where-with-all to defend and file the counter notices and get put back up the next day and those kinds of things, although even one day without YouTube is a big deal." Also, lots of the major commercial backers of SOPA and PIPA, especially the big content providers, have their own professional partnerships and advertising programs with YouTube. However….
…It will be a gigantic problem for smaller operations and startups to survive
"Earlier last year we saw a company called Veoh that was basically put out of business by litigation over whether or not some of the stuff they had was Fair Use." Said Gordon. "Well again, that Fair Use analysis came late in the game. Now If SOPA goes into effect, the website gets taken down, the payment process gets stopped and then you get to argue about whether it's really infringement. And then if it isn't, okay, well we'll put it back up. Well, that might take 6 months to a year and that's really troubling. So small businesses who depend on video are really at great risk of essentially being shut down without any real proof that they've been doing anything wrong.”
For businesses that are looking to get into online video or expand their video activities, there would be such a chilling effect and such a risk that investors wouldn't want to get involved. SOPA and PIPA, if either passed, would be likely to put a lot of companies out of business.
Recapping all the problems with SOPA and PIPA for the Online Video Ecosystem
Can you say "overkill?”
- The language of the act is very, very broad. It addresses websites that engage, enable or facility infringement of copyright. "It's like performing microsurgery with a butcher knife or a table saw," says Gordon.
- Every video sharing site and social media platform will also be prime suspects for a site-wide shutdown – YouTube, Facebook, Twitter, LinkedIn, Tumblr, Vimeo – You name it. One complaint can shut down an entire site with everyone's account.
- Takes aways due process. Currently, we have the Digital Millenium Copyright Act in place, which provides us with due process, should someone ever make an IP claim against us. "With no due process it's very prone to abuse by someone who just has a malicious motive to shut down a particular site. Theoretically, you could shut down all of YouTube because there's a dancing baby video that you don't like, even if it's not your content." Or for another example, I sing a copyrighted song in a YouTube video.
- It hurts the big content providers as well. "I think that Hollywood and the rest of the content industry is being a little short sighted here, because they themselves are also sometimes the distribution on the Internet," says Gordon. "For example, if I don't like something that, say NBC did (with NBC.com), I can actually file my grievance and say NBC is infringing my stuff and they need to be taken down. Now just to be clear, it's not going to shut off their television or cable access; it's going to shut off the option to go to NBC.com to find out more about the show or to see a clip or to see who is going to be a on Leno tonight. So now NBC has lost one of its ways of connecting with it's customer base, and so on.”
"It should be also pointed out that NBC is actually owned by one of these big ISPs, the technology company Comcast. So the interests even within the companies are really competing; and it's really the argument is these companies need to be working together to find practical solutions that don't destroy a whole infrastructure, just to trim 'one dead leaf'." Says Gordon.
Piracy in Online Video is a Huge and Growing Problem (And We Have to Share in the Blame)
"The technology industry isn't entirely without fault for allowing this problem to become as big as it has and generate this kind of draconian legislation as a proposed solution." says Gordon. I have to agree and add that most of us who are professionals in the online video space have to also share responsibility for not paying attention to IP laws, and having better standards on what we use online and get permissions for. There are a lot of businesses who have been hurt, and a lot of professionals and artists who have suffered because of online piracy. Keep in mind that these bills in Congress didn't just pop up from onl special interests. According to a post on the Facebook site, Illinois Coalition for Internet Freedom (which opposes both bills), There are anywhere from 1 million – 3.5 million petition signatures supporting SOPA and PIPA.
"What we're really dealing with is an overseas issue," says Gordon."I represent film makers, independent film companies that spend millions of dollars to make a movie. Say they then get a distribution deal where let's say it's goes on to DVD in Thailand; and the day after it's on the shelves in distribution in Thailand, it's on the Internet! This actually happened to a client of mine. They released the film in a foreign country, it was online the next day, a week or so later you could order a DVD copy of that bootlegged online video that would be manufactured and drops shipped overseas for about $12.50 and the issue was that none of that $12.50 made it to my client because it was a bootleg. It wasn't going through the normal chain and it was cheaper than it could be sold by a legitimate distributor in the States, so guess what? Their online distribution deal evaporated.”
As you can see, piracy is definitely a huge problem with online video; and both SOPA and PIPA at their core, are dealing with an important legal matter that needs to be addressed better than simply our status quo. But SOPA and PIPA simply go way, way too far; and won't be at all effective with dealing with the problem.
"We've gone well past the days of Napster," says Gordon. The vast majority of people and businesses in America aren't online pirates, and they know things like downloading normally-paid content off 3rd party sites is stealing. But what they generally don't know are things such as getting permissions from other IP owners, How do you relate this to people who are doing those kind of things here, who most likely may not be familiar with these things, or like you said, throw out the baby with the bathwater?
How do you effectively handle the problem of online video piracy?
"You've got to build in a due process mechanism with this; so that when the allegation of piracy is made, then the pirate has an opportunity to come – not just the pirate, but the company that's hosting that stuff." Says Gordon. They both have the opportunity to come in and say, well wait a minute, shutting us down isn't the answer." Otherwise if they don't appear or can't make their case, then "yes we'll shut them off, but we're not going to shut down the whole domain name.”
That perhaps is a way better solution that what SOPA could offer for taking out online pirates and protecting IP. "But What SOPA will do is essentially cripple the Internet, or it has the potential to cripple the Internet," says Gordon.
"Now the Internet will survive, it always does; it was designed to handle these types of attacks. It would just these censorships as damage to the network, and it just routes around them. But I think the answer is more due process and more custom craft solutions to the particular acts of infringement, rather than this mentality of, "well the leaf out on the end of the branch is turning brown, so let's cut off the whole branch," you know? It's sort of what they're doing here (with SOPA and PIPA). So I think online piracy and IP infringement needs a solution, but it needs to be much more narrowly tailored and customized and crafted.”
Congress and the rest of our federal government aren't the only ones who need to be handling this better, and it's not just the big content companies and technology companies who need to as well. So do we, the regular joe who's invovled with online video. Part of that comes from a lack of education about the law, and part of that comes from not treating in important enough as we should. SOPA and PIPA are the result of that.
Until our level of education about the law improves, which needs to be more accessible and in a language people can understand, and with better technology resources and communities that encourage us to be more responsible, these problems will only get worse for all of us.
10 Solutions for fighting online video piracy and protecting video users' rights
#1 PSAs. Put out a public service announcement educating people on overseas piracy and how it hurts businesses, and what people can do. If there's a way to say how this hurts business and how this hurts people, that's a very good argument instead of not taking the time to educate people, instead of passing what would be called a draconian law. My recommendation is to feature real-life stories of people who pay the price for breaking the law as a reminder to all of us. (Evan Emory, are you listening?)
#2 – Get a legal video education. Video sharing sites, especially YouTube, can create and promote a special channel specifically for using YouTube responsibility – both with the law and ethics – for both professional and general creative use. They could regularly feature news updates with the law and legal issues, and bring in attorneys and other legal professionals with a background in online video and new media – along with important issues around online video including copyright infringement and fair use, trademark infringement, defamation, right of publicity, right of privacy, fraud, and harassment. The technology companies should help us with being responsible – such as, learning how to obtain proper permissions. In return, the content companies should readily make available an easy means for regular content users to find out and request permissions, and something that can be more affordable and reasonable based on the level of use.
#3 Share your technology. YouTube has it's own Content ID program, but it's only for protecting the IP of their content partners, not businesses or the public at large. YouTube should look at some way to share this technology with all account holders who want to be responsible, versus just being available for only some content owners and not others.
#4 – Technology and Content companies need to work together. "I think that what really ought to be happening is the big technology companies and the big content companies ought to all come together and work out some kind of practical mechanical solutions that resolve, this without the need for this kind of very broad brush sweeping legislation." Says Gordon. "There is a problem, but as you said, we may be throwing out the baby with the bathwater; and I don't think that making a new law (especially from SOPA or PIPA) is really going to solve the problem… Really all this does is hurt the average consumer (and content creator) of the Internet.
#5 – Provide better access to legal resources – technology companies can work with attorneys and legal services who can provide their expertise and resources free of charge. One such group is New Media Rights, who offers legal consulting on a pro-bono basis.
#6 Commit to sponsorships – Technology providers should be willing to donate their own funds and other resources – preferably to an independent group in their own organization, to keep an informational and educational resource around online video afloat. That would be a good demonstration of their commitment to civic responsibility (both law and ethics) with online video.
#7 Get permissions – Gordon offers this simple a simple rule of thumb whether you're creating video for sharing or any kind of media style content, or even just writing a blog post." If you didn't create it, you don't own it, so you've gotta get permission for it before you share it. You need to first get permission from the people who did create it or who do own it. So say if there's a piece of music you're using in a video – whether it's a tiny little clip or a the whole song – you need to at least make the inquiry about whether you need to clear the rights; and don't just assume that Fair Use is an acceptable defense." That's the bottom line – don't steal other people's stuff.
#8 Learn the guidelines – Gordon has written a book that provides a lot of these kind of guidelines for media producers, including both online video creators and marketers. It's called the Podcast Blog and New Media Producers Survival Guide and it can be found at PodcastLawbook.com and Amazon.com You can also attend a conference or webcast covering the latest issues with online video and new media. One I recommend and have personally covered is the Practicing Law Institute (PLI). Of course, you can always consult with an attorney who specializes with new media and IP law, or whatever the special legal issues there are related to your business.
#9 Watch helpful videos – I encourage everyone to check out my own YouTube channel, "LegalVideoGuys," which includes a number of videos covering copyright and other intellectual property issues and tips with online video for everyone – professional or just the enthusiast.
#10 Pledge to "Tube Responsibly." As corny as it sounds, I think it has to start a sense of personal responsibility. That's why I did this draft piece for ReelSEO, "A Pledge for Online Video Responsibility – A Video Code of Ethics." (I'm working on a short-format version and a version specifically for respecting others' intellectual property.)
(Also, stay tuned because I'll be including a video of seminar of Gordon Firemark from Blogworld Los Angeles offering a great basic education on IP laws.)
Did I say 10? Because these go to 11. ;-)
#11 Join a cause
Either against or for SOPA, or PIPA, just get involved!
It's Up To Us, Really
Greater online video freedom and power needs to include a heightened sense of online video responsibility. If we don't start taking more personal responsibility, as well as more responsibility as an entire industry and community, don't be surprise if the next bills in Congress go further than what we have with SOPA and PIPA, and with more of a chance of being passed, simply because we weren't willing to do what we should already be demanding of ourselves.
If you've benefitted in anyway from online video, there's really no excuse not to.
About Gordon Firemark, "Legal Video Guy”
Gordon Firemark is an Entertainment and New Media Law Attorney practicing out of Los Angeles, and can best be reached at his primary business domain, Firemark.com, TheaterLawyer.com is another one of Gordon's key sites (with educational legal issues on Theater and Entertainment law), and on most of the social media platforms he can be found under "GFiremark." He also has a podcast on these very kinds of issues called Entertainment Law Update, which you can listen and subscribe to at EntertainmentLawUpdate.com, and also on iTunes.