followup: Internet, media and censorship

The timing probably is largely coincidental, based on when enforcement agents could take action on the indictments. But the U.S. Department of Justice provided a useful example for defining the purposes of the intellectual property anti-piracy bills pending in Congress.

The indictments and arrests involving Megaupload.com demonstrate there already is authority for governments to act on copyright violations, with international agreements in place for enforcement against criminal activities. By showing that governments have power to investigate and file criminal charges for copyright violations, the Megaupload case refines questions over bills for the Stop Online Piracy Act and the Protect Intellectual Property Act.

The bills aim to extend authority to act on allegations of copyright violations beyond government to the commercial entities that hold copyrights and to allow enforcement actions against businesses and agencies that carry illegal offers, inadvertently or intentionally.

Extension of enforcement authority is the primary reason Internet purveyors-- among them Google, Yahoo, Facebook and Twitter – oppose the bills, as detailed in technology media sites such as CNET. Browsing and hosting sites could be dragged into the net of enforcement simply by carrying advertising for or providing links to suspect sites. Their concerns are as reasonable as the concerns of the film and music industries seeking ways to stem uncompensated use of their creative products and services.

Industries producing creative content expect a return on investment. They would not produce the films and music that appeal to large numbers of viewers and listeners except for the expectation of profit. Even street musicians perform in expectation that passers-by will drop a dollar or two; commercial media carries the expectation to a higher level.

If, as the Department of Justice alleges, Megaupload generated millions of earnings for its operators, that is a substantial loss of revenues for production companies that developed the content. Charges of theft of content all remain to be proved, and Megaupload, as with any criminal defendant, warrants a presumption of innocence until proven guilty.

At the same time, guilty verdicts on copyright violations, as have already occurred, do not offset concerns over issues of Internet accessibility raised by critics of the congressional bills. Although it appears to be stalled, there is basis for concern that any version of the Stop Online Piracy Act would promote further demands on government to impose regulations on use of content if not impose standards that censor the Internet.

Publishers of newspapers including The Maui News have been dealing with the same concerns as Warner Brothers and 20th Century Fox -- copying of content by online sites that generate income from materials they do not produce.

There is a cost to producing and delivering content in a newspaper or a television station -- for reporters, editors, production staff and technical personnel, down to the carrier who drops the newspaper off on doorsteps. News story copied to links on alternative online sites, such as Huffington Post or the Drudge Report, provide no revenues to the originating news organization. Aggregators profit without facing the costs of the originating news operation. Controlling re-use of news stories is even more difficult, forcing newspapers to look for ways to limit access such as requiring online subscriptions.

It does not take much imagination to foresee legal options for other media and producers that would be opened by a Stop Online Piracy Act. For a writer who hopes the newspaper publishing his material can achieve financial health, there are clear personal and professional conflicts over principles of access to information and the need for net income.

Adding to the quandary, there are rights on both sides of the equation as well as a broader issue of public protection. The public has rights of access to information. Producers have rights to copyright protections on design, engineering and product.

Counterfeiting and copying of intellectual property is a serious economic threat to producers while posing a public safety threat to buyers of stolen property. Counterfeit goods such as drugs or vehicle parts can be unsafe or purchases can link innocent consumers to criminal organizations.

The Intellectual Property Rights Coordination Center of the Department of Justice deals with copying and counterfeiting, that go beyond copyright infringement to theft and counterfeiting of drugs, electrical components, vehicle and aircraft parts, software and food products.

“Infringing goods traditionally were limited to luxury goods, such as counterfeit handbags and watches. With the advent of new technologies, combined with the high profits and perceived low risk from selling infringing goods, counterfeits have become increasingly more sophisticated and prevalent. Products in every industry – from food to health care products to electronics – now are being counterfeited. Law enforcement official have to date seized over 600 different categories of infringing goods in the United States,” according to a November 2011 center report, “Intellectual Property Rights Violations: A Report on Threats to United States Interests at Home and Abroad.”

There is an ongoing and expanding effort at enforcement against copyright violations that critics of the congressional bills apparently don't recognize, since some commentators suggest the announcement of the Megaupload indictments was timed to counter protests against the bills. They apparently haven't noticed other cases involving lesser offenders, such as the indictment and conviction in September 2011of NinjaVideo.net operators for copyright infringement. Co-founder Matthew Smith was sentenced to supervised release but ordered to pay $172,387 – his share of the illegal profits. His partner Hana Amal Beshara was sentenced to 22 months in prison and ordered to reimburse $210,000.

Megaupload draws more attention as a matter of scale, but the allegations are similar.

At the same time, proponents of the bills fail to recognize, or just deny, the historic rationale for the format of the Internet as it was being developed by the military's Advanced Research Projects Administration. Multiple connections assuring a robust communications system are intended to overcome faults and losses that would occur with a war or other major disruption. As physicist Michio Kaku explains: “. . .the Pentagon's priority was to provide scientists with a way to rebuild the country as fast as possible, unimpeded by unnecessary restrictions.

“It was clear that this meant the network would have to exist without a 'policeman.' Bureaucratic rules, censorships and government meddling would only retard the building of America in a race with the Soviet Union. . . It was partly for this reason that the Internet was built without censors, rule and regulations.” (“Visions: How Science will Revolutionize the 21st Century,” Anchor Books, 1998)