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After the Thanksgiving recess, Congress is expected to vote on two bills that will influence the future of online Intellectual Property (IP).

The Senate bill (S. 968) is dubbed the “PROTECT IP Act” (PIPA) which stands for the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act”; it was adopted by the Judiciary Committee in May. The House bill (H.R.3261) is the Stop Online Piracy Act (SOPA) and is currently being deliberated.

The Motion Picture Association of America (MPAA), the music industry and a handful of digital rights holders, including games companies Sony and Nintendo, are pushing the bills. (Forbes published a strong defense of the Senate bill.)

The fight against this new effort to police IP on the web is being led by Senator Ron Wyden (D-OR), a coalition of free-speech advocates including the Electronic Frontier Foundation (EEF), Reporters Without Borders and Human Rights Watch as well as an growing assortment of tech and financial services companies like American Express, eBay, Google and Yahoo!

The bills are ostensibly intended to enable the U.S. Department of Justice to secure a court order to shut down a website accused of copyright infringement. These are designated as “rogue websites dedicated to infringing or counterfeit goods.” The bills are designed to halt websites (particularly those outside the U.S.) from offering bootlegged movies, knockoff Louis Vuitton handbags, fake Viagra and other questionable merchandise.

The bills essentially complement each other. PROTECT-IP is aimed at sites “dedicated to infringing activities,” while SOPA goes after sites that apparently don’t do enough to track and police infringement. In addition, SOPA expands U.S. enforcement powers to take down foreign sites and not just those claiming to be a “U.S. authorized version.”

Most alarming to web businesses, SOPA would allow the U.S. government to establish a blacklist of sites that it claims are infringing copyright claims. Such a blacklist would violate the due process rights of site owners, but would also require Internet Service Providers (ISPs) to shut down access to a site on the blacklist. In addition, web payments companies (like Paypal and Visa) as well as advertising services (like Google) would have to end services to such a site upon receipt of notification. However, the notification need only be based on an allegation that the site facilitates copyright violation; no legally-determined confirmation is required. Thus, the new legislation would effectively end what is known as the “safe harbor provisions” in the Digital Millennium Copyright Act (DMCA), which grants sites immunity from prosecution as long as they act in good faith to take down infringing content upon notice.

Under the likely reconciliation of these two bills, the new law would likely make web companies into online security cops, having to safeguard every piece of IP posted to their site. Sites like YouTube, Twitter and Facebook, which have tons of content and hundreds of millions of users, would have to vouch for the copyright worthiness of everything on their site or (worst case) be shut down. Even more vindictively, an ordinary user who posted an unapproved piece of copyrighted content or product could be imprisoned for up to five years.

What’s the threat? A video has gone virile showing teen heartthrob Justin Bieber being outed for having sung copyrighted songs without permission to kick-start his career. Under the new bills, Bieber might be the first person arrested.

The bills’ draconian enforcement policies have raised the ire of many groups and companies that traditionally favor tough enforcement policies.  For example, the Business Software Alliance has come out against the bills, calling for moderation. Companies like Apple, Microsoft and Intel warn that the bills could end Internet innovation and change the web’s very architecture. Even Verizon warned that SOPA could force it and other telecom companies into the role of web cops trying to block sites that host pirated materials.

The Hollywood studies, which are now really nothing more than the sexy tails wagging the dogs of major media and communications conglomerates, have long resisted technological innovation. In 1984, the Supreme Court ruled against Universal (and, thus, Hollywood) in the now-legendary Sony “Betamax” case. The Court’s decision enabled TV viewers to copy TV shows directly off-the-air for time-shifted, personal viewing; analog homevideo was the first DVR. Further, the Court carved out a space under which copyrighted materials were limited by “fair use” considerations for both journalists and the consumer. While Hollywood forecast a Chicken Little scenario as to the movie industry’s sky-will-fall-with-homevideo, the movie business was the technology’s greatest beneficiary. Hollywood was saved by the technology it so fought.

Since ’84, the studios, the record industry and other major copyright owners have moved to tie-up rights in two important ways. First, they have repeatedly attempted to restrict new technologies, particularly the Internet. Second, they have extended copyright essentially into eternity; it could be 70 years after the death of author, or it could be for corporate authorship 95 years from date of publication or 120 years from creation, whichever expires first. They have effectively used their deep pockets to lobby Congress and push through self-serving and shortsighted measures; in March former Senator Christopher Dodd, long the banking industry’s best friend in Congress, became head of the MPAA.

The issue of copyright infringement and outright theft is critical for filmmakers, especially indie makers. In place of the heavy-handed measures represented by PIPA and SOPA, the Congress needs to craft legislature that is both more nuanced and more targeted, legislation that goes after the real bad guys who rip-off copyright holders.

To take action against these bills and to support Sen. Wyden, join the tens of thousands who’ve already signed the online petition.

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David Rosen is a writer and business-development consultant.  He is author of the indie classic, Off-Hollywood: The Making & Marketing of Independent Films (Grove), originally commissioned by the Sundance Institute and the Independent Feature Project.  He can be reached at drosennyc@verizon.net.  For more information, check out www.DavidRosenWrites.com and www.DavidRosenConsultants.com.



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