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Friday, November 19, 2010

COICA Follow Up: A Message to the MPAA

The rhetoric is ramping up over the COICA bill once again.  It passed through the House Judiciary Committee unanimously this morning and it looks poised to land pretty close to the finish line in the lame duck congress.  While this observer is unconvinced that it will go much further before the next session, it is clear from the redoubled efforts of the anti-COICA campaign that they feel differently.

I’ve blogged before about the bill and some of the ravenous and blatantly false propaganda that’s been trotted out as objection to it.  Setting aside the scare-tactic sites there is an increasing swell of levelheaded opposition to the bill as well.  Within an hour of today's development dozens of blogs sprung up decrying the legislation from a dozen angles.

As I’ve stated before, the most legitimate argument against the bill is that it will be ineffective.  Congress is desperate to pass some kind of meaningful legislation to curb the proliferation of sites like Pirate’s Bay and they don’t seem to give a damn if they work or not.  It's just about passing a freaking bill.  Even a symbolic gesture like COICA would be enough to ensure an uninterrupted flow of campaign contributions.

The trouble is that COICA isn’t being treated like the cat-footed, wrist-slapping fluff that it is.  Doomsayers describe it as a sweeping censorship bill ripe with potential for abuse.  They call it a Draconian measure that opens the door to a China-style Internet.  They claim that it lacks due process despite the fact the bill (a) clearly spells out due process in relation to enforcement of the new law and (b) would still be subject to the Constitution regardless.  The blogosphere has put its collective foot down and declared this bill to be the work of the agents of Sauron and no amount of reality will talk them from that precipice.

Beyond the misinformation there is still a naked emperor.  The bill simply won’t work.  All it will do is shift the bit torrent traffic from one type of site to another.  Meanwhile, massive infrastructure changes will go into place for a law that will be outdated long before it is enforceable.

So that leaves the larger question still unanswered.  How do you stop illegal file sharing?

The MPAA has handled the onslaught of negative press pretty well so far.  Their support of COICA has led many to compare them with the much-demonized RIAA.  They’ve stayed fairly clean by continuing to focus on the 2.4 million jobs that the movie industry creates in the US and consistently reminding everyone that their primary concern is for the little guy.  You can decide for yourself if that's true, but effectively it doesn't matter.  They're fighting to save an industry and if the industry sinks the little guys go down with the big ones.  Everybody is on the same boat.  

The question the MPAA faces is a precarious one to say the least.  How do they enforce the law in new technology without stunting the growth and utility of that technology?  And while we're posing queries, how much can you afford to alienate a customer base that is already turning against you and stealing your stuff?

Hopefully the MPAA will go right simply by doing everything antithetically to the RIAA.  The RIAA defined themselves for the purposes of the Internet by seeking $13 million dollars in a suit involving 34 cases of copyright infringement.  It didn’t take long for people to do the math and realize that they were valuing individual cases of copyright infringement at $382,352.94 each.

As much as I’d love this to be true (my movie collection would be worth over $190 million), we know that it in fact means that the RIAA is an evil, money-grubbing organization.  This makes the effort damaging and futile at the same time.  The MPAA has not yet focused its efforts on regaining monetary compensation, but rather seems singly focused on closing down the offending sites through whatever means necessary up to and including letting a number of SEOs think they’re in league with Satan.

But I’m here to tell the MPAA that they’re going about it all wrong.  They should be seeking compensation.  They should back legislation that establishes fines for copyright infringement that are paid by the host site and let the free market be your bully.  Make no mistake, MPAA, you don't want Pirate's Bay to go down before you have something else to fill its purpose.  Sites like Pirate’s Bay make some money from advertising so there would be a threshold at which they could continue to operate while still paying the fines if, and this is the important part, the fines are small enough.

I’m not just talking about backing away from the RIAAs opium-induced fantasy numbers either.  I’m talking about a fine that the average American would see as a fair price for getting caught stealing a movie.  No more than a hundred dollars and it would likely be more effective if it could come in lower than that.

This is a lot more than a simple PR issue.  The most important thing is that Hollywood finds a way to keep up with the technology and offer their product with the same relative ease as bit torrents.  Of course, nothing sustainable can ever be as convenient as outright theft but at the moment there is a lag between the technology and the industry.  This is the hole that the pirates show up to fill.  By focusing on small, manageable fines you create a small additional revenue source for the film industry (and depending on cost of enforcement it could be small enough to be irrelevant).  More importantly you allow a penalty that handicaps the illegal sites while the legal options get a chance to catch up.

I strongly urge the people who are putting all of their effort into fighting COICA to instead use the same effort to find more desirable solutions to the problem.  Billions upon billions of dollars are at stake here and when there are holes that big, they will be plugged.  It’s just a matter of how long it will take and how big the cork will be.

Up until now we’ve been taking too long with the damn corks.  By the time we get them fashioned just right we get back and find that the hole has gotten bigger in our absence.  We go back and start again, crafting a new cork with our new measurements.  All the while the hole gets bigger while we argue over what color we want the plug to be.

The fear that has urged so many to take up Tweets against COICA is that we might just make a cork so big that it plugs the hole and smothers everybody on the boat at the same time.  We're not there yet but it's an inevitable outcome if we don't solve the problem.

Aaron Davies

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