At the risk of flagellating the deceased equine, I’m adding yet another voice to the furor surrounding Congress’ latest foray into intellectual property law. For the past several months, the Stop Online Piracy Act (SOPA) and its sister, the Protect Intellectual Property Act (PIPA), have dominated online discussion. Those conversations built to a crescendo as Wikipedia, Reddit, Icanhazcheezburger, and a host of other sites blacked out in protest of the bills on January 19.
It was a rude awakening for Congress.
In the wake of the blackouts and the unmitigated storm of emails and phone calls that hit individual senators and representatives, regardless of whether they were personally involved or not, calls to vote on the bills stalled as proponents abandoned them.
I won’t get into the merits of SOPA and PIPA. Better legal scholars and business people than I have broken it down numerous times. There’s been good rhetoric and bad politics on both sides of the issue.
Yet neither side is completely right or completely wrong. Piracy is and continues to be a problem for all content industries, including the video game industry. At the same time, free speech is the first civil right in the collective American value system. Beyond that, the technology industry has been predicated on the ability to push boundaries and develop new mechanisms for delivery of engaging content.
SOPA was the wrong solution to the right problem.
What was revealed by SOPA was a problem that has steadily grown worse over the years: technology has outpaced the law.
But the struggles of the publishing, music, and movie/TV industries have shown that problems remain in intellectual property law, primarily as it revolves around copyright law. SOPA and PIPA addressed enforcement and punitive measures, but not the problem that continues to vex courts, plaintiffs, defendants, and Lawrence Lessig alike: what is infringement?
The first copyright act adopted in theUnited States was passed in 1790. The law was updated twice – in 1831 and 1909 – before the current iteration was adopted in 1976. Since 1976, additional laws, like the Digital Millennium Copyright Act (DMCA), have functioned as bandages for an old law that was enacted before the explosion of technology we witnessed in the latter stages of the 20th Century and the first decade of the 21st.
A quick survey of technology shows us that the floppy disk, that ungainly five inch piece of plastic that has gone the way of the dinosaur was invented in 1970. Pong followed in 1972. The cellphone, which brought about numerous ringtone lawsuits, wasn’t invented until 1979. The ‘80s saw the explosion of computer technology with IBM and Apple making and selling home computers that weren’t the size of a car. And while the internet existed in some primordial form since DARPA and Al Gore invented it, it wasn’t until 1990 that HTTP and WWW were created and the mid-90s that Netscape really brought the widespread commercialization of the internet.
How was a law written in 1976 supposed to contemplate the internet? Napster? Youtube? Everyone’s favorite example band and masters of sampling, Girl Talk? Facebook?
The answer is: it can’t.
Last year, patent law was finally updated by Congress to reflect the advances of technology and the very obvious truth that the old law was no longer appropriate in an increasingly globalized and digital world.
What the chaos and controversy around SOPA says, more than anything, is that it is far past time for copyright law to get its due. Senator Dianne Feinstein (D-Calif.) tried to get Google and Disney to sit down in the same room with each other after SOPA was abandoned to discuss reaching a compromise. According to the Huffington Post, Disney declined.
SOPA, however, brings with it a tremendous opportunity for the video game industry. The video game industry sits in a prime position to take a leadership role in the next iteration of copyright law. Legitimate concerns exist for both the content and the technology industries. The beauty of the video game industry is that it sits in both worlds: a technology-based industry, constantly pushing to create new hardware and new software to make the gaming experience richer for consumers, and a content industry, creating valuable original intellectual property that requires an investment on par, in many cases, with a blockbuster film, and strong legal protections to ensure that the industry continues to grow and benefit from its intellectual capital.
Since entering the games industry several years ago, I have been introduced to some of the most creative legal minds and ingenious businesspeople, who can talk to both Google and Disney on their levels and shares common concerns and interests with both sides. It is well past time for the leadership of the industry, from Activision to Zynga, to take up arms.
SOPA was a klaxon call of warning.
It was also a call to battle.
Brandi M. Bennett, Esq. is an attorney licensed in California who specializes in all intellectual property law for the entertainment industries. She has worked in house for a comic book publisher and a Chinese video game developer and publisher. She currently has her own practice, Bennett IP Law, in Los Angeles, CA helping entertainment and technology clients around the world with their intellectual property, contract, and general business needs.
When she’s not working, Brandi can be found in a sports bar following the Green Bay Packers and Phoenix Suns or at home working on her first novel.
Brandi can be reached nearly 24/7 at firstname.lastname@example.org.