Was that a collective sigh heard across the Internet late last week? Authors of
both the House’s
Online Piracy Act (SOPA) and its Senate sibling, the Protect IP Act (PIPA), finally backed off their zany
plan for making critical changes to the Internet and DNS system without actually
consulting technical experts. Good idea guys, considering that virtually every technical
expert agrees that the DNS redirection provisions in the bills are incompatible
with DNSSEC, which now add previously unavailable security protocols
to the Domain Name System. Both authors agreed to strike the DNS provisions after
talking to experts; voting has been delayed pending further review.
However, that collective sigh quickly morphed into something more aggressive, as
attention to the topic spurred a somewhat belated but fairly frenzied burst of activism.
(Not one to be left off the bandwagon, I added a nice "Stop SOPA” bar to my social
media profile pictures.) Full steam ahead to #BlackoutSOPA Wednesday and the Nuclear Protests! Despite
being mocked via Tweet as "silly” by Twitter CEO Dick Costolo,
which sparked a snarky mano-a-mano Twitter battle between the two head honchos,
Wikipedia Co-founder Jimmy Wales said his site will go dark on Wednesday, January
18, for 24 hours, from midnight to midnight ET, while the Reddit blackout was to
last 12 hours from 8 a.m. to 8 p.m.
A thinly veiled denouncement released by the White House over the weekend
certainly fed the swell. The White House said it "will not support legislation that
reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic,
innovative global Internet.” If it comes down to the Internet, with Silicon Valley
and the Obama Administration in its corner, versus Old Media-backed SOPA/PIPA, my
money is on the Internet every time.
With a near zero chance of these bills passing in their current state, does that
mean it’s time to kick back and relax…hands behind the head, feet propped up on
the desk? Not quite.
Tomorrow Never Dies
Copyright infringement reform, like that last 10 lbs, is not so easily discarded.
PIPA is actually a rewrite of 2010’s proposed Combating Online Infringement and Counterfeits Act (COICA)
in the Senate. The one thing almost everyone can agree upon? Copyright infringement
is a huge problem. Even the most fervent detractors generally concede more effective
enforcement tools are needed. Which means some iteration of copyright infringement
reform is coming, and it is now just a matter of finding that elusive middle ground
between Hollywood and the Internet industry.
The Great Debate
Essentially, the major point of contention involves determining which parties will
be responsible for funding the monitoring and enforcing of intellectual property
rights online. Currently, the responsibility falls almost solely to brand holders.
Piracy runs rampant, and brand holders believe they are suffering losses while everyone
else benefits from this widespread copyright infringement. Brand holders are frustrated
by the apathy of industry players ranging from search engine companies, content
curators and ad providers to social networking sites and even that affiliate marketer
in his underwear in mom’s basement.
The scales would tip significantly in the opposite direction if SOPA and PIPA were
enacted, and there clearly is room aplenty on both sides for meaningful compromise.
But it’s not going to happen with these bills, not in their current state.
Law of Unintended Consequences
SOPA and PIPA, while aiming to squash foreign "rogue” websites promoting piracy,
could have such expansive tentacles as to reach sites we use everyday. Currently,
the Digital
Millennium Copyright Act’s (DMCA) ‘Safe Harbor’ provision protects online
service providers from copyright infringement liability as long as they adhere to
certain guidelines, such as taking down content when they receive a valid complaint.
Under SOPA and PIPA, websites would be held accountable for *all* content.
Even one *potentially* infringing comment post or link (no one has ever
been found liable for posting links to infringing content under DMCA), out
of hundreds of thousands of pieces of content, could put a site in
violation. This violation could then result in service providers being
served with notices to halt services or payment processing for the
*entire*web...lights out.
Few will complain when the truly rogue foreign websites are shut down. It’s certainly
appropriate to pursue pirates selling fake prescriptions, bootlegged War Horse DVDs
and Gucci-like sunglasses. (Okay, I should have known you cannot buy real Gucci
sunglasses on eBay for $5 from someone in China. My bad.)
The trouble with this legislation is that, while it might not be designed to target
US sites, it materially changes the law regarding for what US sites could be held
liable. Some of the most visited websites in the world, legitimate, US-based organizations
like Wikipedia, Google, Facebook, Twitter, Reddit, YouTube, could be shut down over
even the smallest pieces of infringing content. Again, it might not be designed
to target US sites, but given the opportunity, it is naïve to think people wouldn’t
use it to do just that.
These websites collectively host the majority of all Internet content. If access
to that content were suddenly lost, well, you can work out the implications. And
personally, I have no interest in going back to the dark ages of encyclopedias,
one-hour photos and printed news.
Prepare and Protect
While lawmakers figure out how to keep the baby, while dumping the dirty bathwater,
the end game remains the same. No magic pill exists to battle copyright infringement,
regardless of which legislation is in place. The current technology and methodologies
used to detect copyright infringement appear to be largely ineffective, expensive
and cumbersome.
As you may know, copyright exists the minute an original work of authorship is created.
No registration required. This blog is copyrighted. Bam. And it is rewarding to
say that I am a copyrighted author, even if no one appreciates it but me. However,
all this copyrighted material adds up to an unfathomably massive amount of protected
content.
Pitfalls abound universally across the copyright infringement landscape, but that
doesn’t mean you have to sit idly by and do nothing. There are plenty of proactive
measures, including the ones below, that you can employ now to help prepare for
the potential changes in legislation and help protect your own intellectual property
from those thieving pirates and slacker teenagers. (For the record, all of my digital
music has been bought and paid for.)
Tighten Internal Policies
- Social Media: if you don’t have social media strategies, policies or guidelines,
now would be a good time to draft and implement those. Be sure to include language
regarding the proper handling of trademarked and copyrighted material.
- Employee Handbook: your employee handbook is probably already the size of War and
Peace and one more page shouldn’t matter, so go ahead and slip in that IP language.
- Affiliate Agreements: affiliate marketing programs have been known to unwittingly
shelter some pretty dodgy characters; a good place to start enforcement is with
strong language in your affiliate agreement
Without educating the workforce and enforcing policies in the workplace, these policies
will remain ineffective, so make it a multi-pronged approach. These actions alone
won’t guarantee the good behavior of your employees or partners, but if implemented
successfully, they should significantly lower your risk profile and provide solid
evidence of your good faith efforts should something go awry.
Implement Strategic Online Monitoring
Many brand holders recognize the importance of monitoring their trademarks online, but even the basics
of "what” and "how” to monitor can be overwhelming. Wading through data dumps to
actually find the most egregious items, and then trying to keep track of enforcement
activities can be herculean tasks. Specific types of monitoring may help streamline
some of those processes while tightening compliance with current and future copyright
laws.
- Affiliates: monitoring for compliance within your affiliate partnerships is a good
next step. It should help weed out problematic affiliates and possibly prevent future
problems with non-compliant partners.
- Social Media: what is being said about your company, brands, and competitors across
social media platforms is called "ground truth” and the value is probably self-evident.
Conversely, monitoring the online activity of your employees and executives, albeit
publicly available activity may seem a bit smarmy and invasive. Actually, it might
be naïve and risky not to. You don’t want to be the last to know when your summer
intern goes on a drunken Twitter rant badmouthing your company and spilling company
secrets obtained illegally from her boss’s desk. Her 3,000 followers already saw
it. You don’t have to be the Tweet Police, but you’ll want to hear about it immediately
if something over-the-top happens.
- Crown Jewels: protecting your IP par excellence is a smart way to anchor your monitoring
initiatives, and this monitoring should be customized to the exact type of IP as
well as your specific situation. For instance, if you have a well-known logo or
image, then it would be important to utilize advanced logo and image detection/recognition
monitoring tools. If you have a well-known apparel or accessory brand, then auction
monitoring to locate counterfeit goods makes sense. Do you have a product that is
only offered in certain parts of the country and therefore are worried about grey
market sales? Geo-targeted Craig’s List monitoring would be appropriate in that
instance. Most importantly, one size does not fit all. Use customization and specificity
to boost the production and efficiencies of your enforcement team.
By protecting your most valued IP assets in this calculated, organized manner, you
can quickly identify infringement and take action, whatever that allowable action
may be at that time. Outside help is available from experienced brand protection
companies, such as
CitizenHawk, as well as many other corporate providers in the market.
Ultimately, SOPA positioning aside, having your own house in order, on multiple
levels, can only make any kind of coming change that much easier. And change is
coming.
The views expressed in this blog posting are those of the author and do not necessarily
reflect the views of, and should not be attributed to, CitizenHawk.
