A few days ago, I started seeing journals once again ranting about how SOPA is going to take away our fandom, or even our original content, in my feed here on deviantART. I did a search for reputable sources talking about it, and found just enough to be worth discussing, but not enough to justify the panic that's happened. I vowed I would do a journal about it come the weekend.
Since then, it's blown up. I've had numerous new faves on my old write-up of SOPA 201, despite it having "2013" in the title. I wish I could be happy as well as flattered, but the piece of potential legislation I wrote about then isn't the one people are talking about now. People have been calling for me to explain the "New" SOPA, but research to cite has been scant and so has my time. I have many more obligations now than I did then, and I wrote the last article at a much less busy time of year.
Complicating my research is the fact that there are, in fact, THREE new "SOPAs."
None of them are quite as bad as anyone is saying, or even as bad as the original SOPA. Actually, all the scare-mongering and panic is going to make SOPA harder to fight, since we just look like idiots raving about things we don't understand. I'm going to show you exactly what we have to fight, and give suggestions on actually fighting it.
If we don't mount a COMPETANT defense against this, fanart is not the only content that's going to be in danger. These measures will threaten original content by going after the websites that host it.
New SOPA #1: "Voluntary Agreements"
The new "SOPA" I became aware of first is a form of "voluntary agreement," explained in this Slate article: "Hollywood's Copyright Lobbyists Are Like Exes Who Won't Give Up."
Basically, since the people behind SOPA can't get it passed into law and enforced by the government, they're trying to get companies on the internet, like ISPs, hosts, Domain Name Registers, etc., to do it for them. They want these companies to sign contracts to enforce SOPA-like provisions on their own, and they'll probably strong arm them into doing it by using financial incentives like the threat of a lawsuit. The article suggests they're doing this by basically asking the government to sign off on it. The government would have little choice but to do so, since all these content providers more or less can choose to refuse to host or list whatever they like.
Of course, that assumes this article is accurate. It's a Slate BLOG, as in, not an actual Slate article. The article was posted on Monday, March 10th, and updated on March 11th. It says, "This Thursday, the House Judiciary Committee, the folks in Congress who wrote SOPA, will hold a hearing about the DMCA notice-and-takedown procedure," "This Thursday" would mean March 13th. The word "Hearing" was a hyperlink to an article on Politico.com.
I clicked through that article and looked for hearings. Turns out that Politico article was written in February, and the hearing on DMCA takedown procedure was March 4th. If there's another hearing, it was set then. I'm already unimpressed with this guy's reading comprehension.
He then linked to a statement by the CEO of the RIAA, the main company responsible for copyright lobbying for recording companies and musical artists. Personally, I find Cary Sherman's statement much more illuminating than Marvin Ammori's blog. Sherman was quoted as saying, "Voluntary initiatives with Internet intermediaries are a key
component [of stopping illegal distribution of music]."
Actually, the first part of Sherman's statement is a really good summary of how copyright procedures on the internet actually work. This is how they work now, or will work in the near future, and it's not subject to change. Then it transitions into talking about areas that big media want changed. Sherman talks about pressuring search engines to deprecate or remove infringing content, going after hosting and "locker" services that infringe on copyright (something the government already does, and he wants done better), and complaining about the same DMCA failures that infuriate most dA users, like whatever it is that prevents sites from responding to third-party reports or block infringing content from being re-uploaded. Keep this last one, problems with "notice and takedown," in mind for later.
I'll be completely honest. What Sherman said in that statement? I'm behind it, mostly. Sites that host user content, search engines, and ISPs need to work with both their users and Big Media to find solutions that work for everyone, that preserve content made in good faith and non-infringing content, that give well-meaning infringers a fair shake, while still getting rid of accounts and users who are stealing. I'm concerned Sherman and the people he represents might swing things too far away from the user's and artist's rights and toward big media's, but he has the right idea.
If the "new SOPA" everyone's worried about just allows dA to remove infringing content without a DMCA claim, say, with a valid claim from another user, I'm all for it. It just shouldn't go too far beyond that. Sure, these agreements could endanger fandom content, but mostly you're looking at threats to copies of art. If fanfiction and "original" fanart were such a threat to the industry, do you think Fanfiction.net and deviantART would still operate like they do?
My main problem with Ammori's blog is that he's basically complaining about something that's already happened. It's sensationalist scaremongering. Yes, it could get this bad. Yes, this whole thing could be used to create a chilling effect on innovation and stifle non-fanworks by putting intense pressure on media hosts and search engines. Why should it? Big media and little media don't have to be enemies. If we as fandom, if we as artists, make a good faith effort to stop "malicious" copyright infringement among us, won't we have more leg to stand on to fight it if big media goes after things that really should be protected?
If you want to fight voluntary agreements that would make it hard to host fanworks, then the best thing you can do is support efforts to stop THEFT of copyrighted works while OPPOSING violations of DUE PROCESS and the FIRST AMENDMENT. You should also differentiate between "fanworks"/"derivative works" and THEFT.
Shouting about how they're going to make our fandom illegal does not help.
New SOPA #2: The Trans-Pacific Partnership
I'll be honest. You are NOT going to get the usual line-by-line analysis from me on this one. Why is that?
It's my understanding that the Trans-Pacific Partnership is a CLOSED committee negotiating for an international treaty. I tried to look at the leaked documents, and they say the document contains confidential information. I don't want anything to do with this. I'm just trying to help people learn.
So, I'm going to draw my understanding of the TPP wholly from other people who have taken the dive and read the document. Forgive me, but I don't want the legal headache.
Here is the Electronic Freedom Frontier's writeup of the TPP.
The biggest threats from the TPP, if the EFF is to be believed, is that it uses a really obnoxious definition of "copy" to make streaming copyrighted material illegal (hey, remember that thing I wrote up last year), expand the amount of time copyright can last, and turn copyright violations that are done without commercial motivation into crimes.
turn copyright violations done without commercial motivations into crimes
without commercial motivations into crimes
Yes folks, the EFF is saying that this would make all signatory nations turn things like fanfic and fanart into criminal matters.
Here's the thing though: Isn't most copyright infringement already a misdemeanor in the U.S.? It doesn't say felony, it says criminal.
Everything else in the TPP is just lifted from the DMCA.
So here's the thing. Sure, your fandom might not be illegal where you are, and may become illegal if the TPP is put into force. It might become as illegal as jaywalking or being found to possess a small amount of pot.
By all means, we should be opposing the TPP, or at least the parts of it that are obnoxious, specifically the way it handles the definition of "copy" and the criminalization of non-commercial infringement.
Shouting about how dey terk er fandom (apologies to South Park), is not going to get that done.
Further, who's to say the EFF is even right? This Washington Post blog attacks the draft of the TPP the EFF is using as two years out of date... as of MID-NOVEMBER. Still, with the TPP being mostly in secret, and SOPA's poster boy being nominated to work on the TPP in those secret meetings, It would not be unreasonable to assume that the EFF might be more right than the gentleman at the Post.
The secrecy of TPP justifies any legal extremes in verbal and financial opposition (excluding those that would be criminal, of course). Basically, we can't know how bad it is, so we should go off the worst of what we have available to us. We need to vocally express our concerns about the TPP to protect fan culture and small original artists.
But the TPP isn't SOPA. It might be the worst of SOPA, it might have pieces of SOPA, but it's not SOPA. If we're going to stop it, our taglines have to be about the TPP.
If you're opposed to the TPP, STOP TALKING ABOUT SOPA!
New SOPA #3: "Notice and Staydown"
I actually hate reporting on this one, because the idea behind it is great, but impossible to execute without creating a chilling effect.
One of the major complaints people have about the DMCA as it works now is that it's very hard to stop content sites take down from going back up, much less ban the people who uploaded it. Remember that hearing our buddy over at Slate mentioned? At it, representatives from the major media companies spoke to congress about pushing for "notice and staydown" measures. You can read the details at this DSL Reports Article, but here's the gist: These would force companies to maintain a "blacklist" of content not allowed to be uploaded and automatically check everything users upload against it.
Now, Google already does this on Youtube, right? What's the problem with that?
Nothing, if it works the way it's supposed to.
For one, Google's system apparently pulls a lot of false positives (and a lot of false negatives). It can really screw up your account, I guess, to get a false positive on YT, as it would elsewhere. DeviantART, for example, has a three strikes policy.
For two, Google's system took a lot of money to develop. The only sites that would be able to stay open if these measures became law are rich ones who can afford to do intense R&D on their own system, or to license a system someone else developed. The amount of sites that host fan content would dwindle, and we'd be back with a centralized media system just like we had before the internet.
What Can I Do?
- Accept that "SOPA" is not coming back. Shouting about "SOPA" isn't going to help anyone. It just makes us all look stupid. SOPA is gone. Provisions from SOPA may live on, but they won't ever bear the SOPA name again, because the government knows how much we hate it. STOP MAKING JOURNALS ABOUT SOPA WITHOUT MENTIONING OTHER MEASURES.
- Read what you can about copyright law and the different copyright laws. Also, read about Trademark. deviantART's FAQs are a good way to start. Find books. Type "copyright for dummies" or something into a search engine and see what comes up. If you are in school, ask a teacher or professor who is in history, social studies, or poli sci to recommend resources for you. Learn how it works.
- Oppose malicious copyright infringement, or theft. If you steal movies, games, music, etc., stop doing it. If you must keep doing it, buy works after you steal them. Support artists who make things you love by paying them, and support measures in your government that would fight "theft" of copyrighted material without collateral damage on well-meaning works or speech. We have to be reasonable, to be a loyal opposition, to be respected and heard.
- Report "theft" of copyrighted works on sites that act on user reports. I've heard people say that dA now takes third party reports again. Try it out. Since the media is using the failures of DMCA notice and takedown to attack freedom, we have to show them that the system as-is helps.
- Express concern, but not outright opposition, to "voluntary agreements" with SOPA-like provisions. Voluntary agreements like the ones Sherman discussed are going to happen, are already happening, and cannot be legally stopped without destroying freedoms you treasure. Instead of complaining about them, endorse aspects of those agreements that help and loudly oppose aspects of those agreements you think are harmful.
- Oppose the problematic aspects of the TPP with all your might. Call your congressmen. Call your state reps. Call people in the executive branch. Sign petitions that mention the TPP by name. If you MUST mention SOPA, explain that SOPA-esque provisions are being put into the TPP in secret. Any time you mention SOPA, mention the TPP And Notice and Staydown (or at least the TPP) along with it. Don't put SOPA in the tagline of your journals alone!
- Oppose systems that require or legally mandate Notice and Staydown. Notice and staydown as a voluntary policy is a great idea, but forcing little websites to buy into an expensive policy will stifle creativity and shut down original content. Call your congressmen. Call the RIAA and MPAA. Fight it.
- Stay on top of the issue. Don't put it it aside after you make a journal and forget about it. Keep searching for this stuff, keep reading about it, and keep talking about the things that you oppose. Do not let it go.
- Find reputable petitions on the White House website referring to SPECIFIC things you're opposed to. Anti-SOPA petitions make us all look stupid. Anti-TPP or Notice and Staydown petitions that mention similarities to SOPA are A-ok. Want one to sign? Here's one: wh.gov/lVUUX
- Don't think that signing a petition is the end of it. WhiteHouse.Gov petitions only guarantee a response from the administration--that response might be "Sorry but not." The main purpose of one is to make the government aware that we have concerns, not to force them to do what we want. Keep that in mind when signing.
- ChillingEffects' Section on Fanfiction A comprehensive, if biased and inconclusive, resource on the legality of fanfiction
- The Organization for Transformative Works' Legal Advocacy Page The people behind ArchiveOfOurOwn do the kind of stuff I'm trying to, only much better, and with some actual legal training.
- Stop SOPA-like policies in the Trans-Pacific Partnership, Notice and Staydown efforts, and other policiesWhile I was scrambling to add the third SOPA-like problem to my journal, an old college buddy of mine made up a petition that covers everything. Please sign it.
- SOPA is not Back at ef yeah copyright law - The best medicine for any SOPA scare: actually see if SOPA is back.
- Dissent from my position: Petition Criticism at ef yeah copyright law ef yeah copyright law attempts to debunk the idea that the threats in question are a threat to fandom. On the surface, they aren't! It's just the potential chilling effects of a Notice and Staydown Crackdown on the services this stuff is hosted on, and the possibility that some of our fan activities might be found to be "Non-transformative" under law, that are real risks. The truth is somewhere in the middle here.
- New from Cracked: 3 Insane Ways Companies Are Using Copyrights to Bully You
- FairUseTube Discusses Youtube's DMCA Counter-Notice Protocols I'm not sure you could call Fair Use Tube' impartial any more than you could the EFF or the OTW, but it's the most understandable explanation of a Voluntary Agreement that stifles freedom in action.
Thanks to these people, who have helped me compose this journal:
PumpkinQueen13 - The person who's pushed me the hardest to get on this before I was comfortable with the level of information I found. Connie is an admin at several prominent deviantART groups, including Fanfiction-Mayhem and a number of original art groups.
cneilson - An actual publisher who helped me avoid misinformation on copyright, not to mention a dear friend. Mr. Neilson is the President of Spectacular Publishing and the publisher and editor-in-chief of its flagship ezine, Separate Worlds.
B.M. - Author of the best Anti-SOPA Petition on the White House site right now, my best copy editing buddy, and the person who tipped me off about the Notice and Staydown hearing. She's an RL friend of mine and has asked that her contact information not appear on dA, but credit where credit is due.
The other admins at - We recently had to revamp our copyright policies, and working on that helped me prepare this journal. Thanks guys!
fulminato - Provided the ef yeah copyright law links. Thanks!
dragonmp93 - Provided the Cracked and FairUseTube links