And, already there are indications that companies are interested in bringing broad actions for infringement against organizations that most people would consider perfectly legal. Advertising giant GroupM recently asked its entertainment industry customers to compile a list of “sites dedicated to infringement,” not unlike what’s found under PROTECT IP. Universal Music, Warner Bros. and Paramount were three key providers to that list, which ended up covering a large number of perfectly legitimate sites including the famed Internet Archive (widely recognized as the library for the internet). It also included numerous innovative startups that are frequently used by content creators to get their works out, such as SoundCloud and Vimeo. Even more worrisome, it included a variety of publications and blogs, including Vibe Magazine, the quintessential hip hop and R&B magazine founded by Quincy Jones, as well as Complex, a popular lifestyle magazine recently recognized as one of the most valuable startups in New York.
Even worse, it appears that Universal Music also included the personal website of one of its own top artists, 50Cent. The hiphop star has a personal website as well as a website owned by Universal Music. The personal website is much more popular… and it appeared on the infringement list. Suddenly, you can see how letting companies declare what sites are dedicated to infringement can lead to them looking to stifle speech and competition.
— “The Definitive Post On Why SOPA And Protect IP Are Bad, Bad Ideas” by Mike Masnic for TechDirt
So why did Racialicious go dark yesterday?
SOPA and PIPA are bad business for the internet, but are particularly problematic for those of us who engage in cultural critique. If we discuss TV shows, music, movies, comics, and video games, that means that we will illustrate our points with music videos, clips from TV shows, promotional trailers, scenes that make it to YouTube, and scanned images. And all of those things could technically be put under a copyright claim.
We rely on the really tenuous concept of Fair Use to continue to exist. We have some legal protections, but not as many some groups of people (like documentary film makers) who have fought these issues in court. Without fair use Byron Hurt wouldn’t have been able to create Beyond Beats and Rhymes and Sut Jhally would not have been able to create Dreamworlds 3 – if they had to seek permission from the person they were critiquing they wouldn’t have been able to use the material. The problem is there are no hard and fast rules for Fair Use. The EFF cautions us to guidelines and best practices but it is really a matter of what will stand up in court.
I’ve talked to Patricia Aufderheide, director of American University’s Center for Social Media and author of Reclaiming Fair Use: How to Put Balance Back in Copyright, off and on for about two years on these issues. She has encouraged folks like me to continue to do our work since, in her summation, fair use is part and parcel with freedom of speech.
But as the owner of an indie media site, there are some serious risks with that. A while back, Boing Boing pointed their readers to a piece by Waxy, who talked about how his transformative project involving Miles Davis turned into a legal nightmare. The quick and dirty – Waxy cleared the samples he used for the album tribute, but pixelated the image cover believing that the work was changed enough under the guidelines. The judge on the case disagreed. While Waxy and his legal team believed they were in the right, he eventually settled for $32,500 – just to stop the mounting legal fees. Aufderheide, who I interviewed for a piece that will run next week on the ONA site, says that this is part of the process and that by exercising free speech, we are also accepting some of the risk that things won’t be seen our way.
But most of us out here in the internet wilds would drop cases and abdicate our rights because our pet projects and sites would not make enough money for us to defend ourselves, let alone continue operations while we do so. And it’s always the little things that can get you – Sepia Mutiny’s legal issues from a few years ago taught us that we have to watch not only what we say about folks, but also what commenters say – since we actively moderate comments, the court of law might see us as endorsing a commenter’s statement even if we disagree and challenge it.
SOPA and PIPA would essentially take the perilous place in which we operate and obliterate that safety net. If we could get shut down every time we post a Beyonce video or a segment of a movie or show that is outside of the promotional material, then this site isn’t worth running. Especially since these arguments wouldn’t be in public – the way the bill is written means that they would shut us down first, and force us to prove why we were not infringing before we could come back up. Allegedly, SOPA and PIPA would mostly target foreign websites – but we all know how legislation and laws tend to creep and mutate depending on who is doing the interpretation.
We aren’t saying intellectual property is a bad thing – for African Americans in particular, it is important to understand our rights to the work we create, for both historical and financial reasons. However, the laws governing intellectual property have not kept pace with the way we live and passing vague new laws is not going to solve this problem.
So do us a favor – write your congressperson. (And someone write for me – I live in DC now, so I don’t have anyone to appeal to with voting power.) If you’re outside of the US, petition the State Department. We have until January 24th to formerly protest, and while most of the co-signers of the bill are backpedaling, it doesn’t mean the bill is dead.