Last month, activists in the global cyber community leaped to defend internet freedom as the US Congress debated new legislation to curb online piracy. The global information campaign surrounding the SOPA (Stop Online Piracy Act) and PIPA (Personal Information Protection Act) legislation re-opened the debate on the complex state of commerce and the internet, as well as the global implications of cyber law enforcement.
On 18th January, opponents of SOPA/PIPA executed an internet blackout encompassing more than 70,000 websites—including popular Argentine websites like Taringa! and Cuevana—and dominating social media. Under the banner of fighting piracy on foreign-based websites, the two laws proposed shifting responsibility for copyright enforcement to internet service providers, search engines, and payment network providers, creating an online environment that many declared would curb free expression, stifle innovation, and compromise security.
As a result of this unprecedented popular opposition, Congress members in the US backed off their support of the two bills, temporarily tabling them and leaving in place the measures of the Digital Millennium Copyright Act (DMCA), in effect since 1998.
One day later, in a twist, the FBI seized and shut down the file-hosting site Megaupload.com, levelling charges of racketeering, money laundering, and copyright infringement. Given concerns about SOPA’s collateral damage to the internet, the international bust has prompted many to ask why proponents of an expanded legal framework believe more regulation is necessary.
“While this is a money issue, I feel that they are more interested in controlling what we access,” said Beatriz Busaniche, executive director of Wikimedia Argentina, which participated in the blackout, and public leader of Creative Commons in Argentina. “They are still making money, but they are losing control.”
For years, supporters of stricter copyright enforcement have fought to update the law and keep pace with the development of file-sharing tools that compromise their control over proprietary content. As web platforms and torrent applications have multiplied, however, the approach taken by copyrights holders has spurred criticism.
“Appealing to the courts, the FBI, and the police to impose your business model should not be a solution,” Busaniche continued. “If your business model is not working anymore, just change it. Go for something else.”
The Grey Area
In countries worldwide, the challenge facing producers of digital media concerns the future shape of legal recourse against sites such as Megaupload, whose enormous profits as a file-storage service were enabled by content piracy. The arrest of Megaupload’s defendants, the seizing of their assets, and the shutdown of the site required coordination between a handful of agencies in the United States, New Zealand, and Hong Kong. Between the curious timing and the magnitude of the case, a blurred picture of jurisdictional authority has emerged as a growing concern for SOPA/PIPA critics outside of the US.
In Latin America, Taringa! and Cuevana—known as “trackers” because they provide links to content hosted elsewhere—have faced litigation of their own in the past year over disputes involving copyright infringement.
“Taringa! is basically a forum,” said Nicolás Reynolds, member of the Partido Pirata de Argentina, a digital rights, transparency, and privacy organization modelled after European parties of the same name. “People post whatever they like, from news to records to other material. Their defence is that by providing [only] the links, they are not infringing copyright.”
In May 2011, however, two of Taringa!’s owners, brothers Hernán and Matías Botbol, were found guilty of infringing article 72 of Argentine law 11.723 governing copyright. Taringa! was deemed a “necessary participant”, without which the illegal links could not have received wider circulation. The brothers argued that with more than 20,000 user posts per day, they are not in a position to determine whether uploaded content infringes copyright. The court ruled that they assisted in the infringement and ordered them to pay a fine of US$50,000, but notably did not demand that the site be shut down.
In the case of Cuevana, founded in 2009 by 22-year-old Tomás Escobar, three different complaints were filed in the final months of 2011. Both HBO Latin America and Turner Argentina have taken action against the site in reference to specific television series made accessible through streaming links. In December, internet service provider Telecentro SA de Argentina blocked its customers’ entry to the site for 24 hours, invoking “precautionary measures”.
As the cases against Cuevana continue through the courts, a conflict of perception over these sites has taken root. Uncertainty over their murky legal status, particularly after Taringa! was named by the FBI as a potential accomplice in its indictment of Megaupload, has exposed the fault lines in a clash between property rights and the liberty to offer competing services.
“It’s a continuous debate,” said Reynolds. “Piracy is an industry term. Some think we shouldn’t call ourselves pirates because this means accepting our culpability on industry’s terms. I’d say that if we’re pirates, industry is a giant corsair.”
The power and capital behind intermediary organisations such as the Recording Industry Artists of America (RIAA) and Motion Picture Association of America (MPAA) might have been enough, in the past, to keep their sectoral interests secure. These interests, however, are now increasingly about long-term market position rather than short-term profit.
“You don’t want to have a dominant position in a decaying market,” said Enrique Chaparro, an expert in information security systems who has worked with the NGO Fundación Vía Libre, strong in support of the free software movement, since 2001. “You can enact a law abolishing gravity, but things will continue to fall.”
Chaparro, who has lectured for many years on the relationship between new technology and society, believes that, in this case, the historical evolution of business and industrial production can explain more about our present economic behaviour than socio-political issues.
The history of copyright, arguably founded in the political experiment of the framers’ of the US Constitution, often overlooked the privileges of economic stability. If media companies could rely on steady sales and profit margins, it was in part because the domestic market could afford to buy these goods. In many other parts of the world, however, the price of commercial goods remains so prohibitive that any calculations of lost sales are based largely on an assumption that consumers had an intention to buy them.
“When the pedestrian consumer can download anything from the internet, there is a wider range of choice. It’s not in the interest of record companies to compete with such breadth of choice,” added Chaparro.
Fight or Adapt
If nascent technologies on the internet provide more variety and flexibility for consumers, these new platforms will define the future composition and function of markets for digital goods, regardless of whether this process remains contentious or if both sides engage each other to find viable solutions.
Already, Taringa! is launching a new music platform, T! Música, to be managed directly by musicians, while Cuevana, for its part, has developed a service for filmmakers to premiere their work online. On 22nd December 2011, director Maximiliano Gerscovich debuted his film ‘Stephanie’ for free on Cuevana, tapping directly into a user base of more than 15million people.
“It’s not about piracy, as they call it,” insists Nicolás Reynolds. “What all these moves like SOPA and the seizure of Megaupload threaten is the way we use the Internet to communicate and organize ourselves, to form our own conditions for free speech. We are not passive consumers anymore.”
Megaupload, despite its firebrand image, was also preparing to open up Megabox, a fee-based music service scheduled to launch shortly after the raid took place. While the cyber world is, as Busaniche acknowledged, presently engaged in a propaganda war—one in which, on 20th January, the Anonymous hacker collective shut down the websites of US government agencies, the RIAA, and the MPAA—many innovators accused of abetting piracy have expressed their willingness to work with copyrights holders on negotiating a solution to the problem of distributing protected works. In an interview with ALT1040, Tomás Escobar conceded the legal bind, but expressed his desire to solve the problem.
“Cuevana began as a hobby, and was never intended to profit from the works of others. Today, due to the growth of the site, we agree with the producers, distributors, and content owners. We want to generate a new business model that benefits all parties, including the user. So we are in talks to build it. We are working to reach agreements with industry. We do not want to go against it.”
Even with SOPA momentarily dead, other regulatory systems remain on the horizon. ACTA (Anti-Counterfeiting Trade Agreement), currently an enormous debate in Europe, and the TPP (Trans-Pacific Partnership) have already been signed, respectively, by several countries around the world, putting in place guidelines for international cooperation in disputes over copyright infringement and counterfeit goods.
Much of what transpires in this new playing field will depend on how powerful economic interests, old and new, interact with governments to influence future policy. If 18th January is any indication, a free internet will also continue to reflect the popular will to remain an open space. The question is whether public understanding and commitment have grown enough to keep it this way.
“This is one of our most important tasks for the future,” said Busaniche. “We have to help make the common person understand what is at stake. I don’t know if the millions of people who visited our Wikipedia blackout website on the 18th really understood what was happening. I hope so. I think that helped a lot, but we have to work a lot more in the future.”