Stop Online Piracy Act and the Video Game Industry
As mentioned in a recent news article by Crystal Steltenpohl, the Stop Online Piracy Act (SOPA) is the latest in a long run of draconic legislature drafted in an attempt to snuff out piracy. The bill seeks to expand the reach of U.S. law to enforce the Intellectual Property law to a greater degree than already possible.
The bill would allow the Department of Justice (DoJ) to seek court orders forbidding advertisement networks and payment processors from paying, receiving payments from, or enabling payments for foreign infringing web sites accused of enabling, facilitating, or committing copyright infringement.
The bill would also allow the court orders to impose a mandatory censor on search engines, forcing them to remove any pathways to the infringing web sites, and force domain name registrars to take down the infringing domains. Furthermore, the bill seeks to also enable the DoJ to mandate Internet Service Providers (ISPs) to block subscriber access to the sites in question by preventing domains from resolving the correct IPs. This means that the default DNS servers provided by your ISP can be censored on mandate by the Department of Justice. The best solution to this would be to use an alternate DNS such as OpenDNS, but as many DNSSEC experts have mentioned, moving towards alternative DNS can easily open up unsuspecting users to malware. In addition to the stipulations the bill provides for enforcement, the bill also grants immunity from suit to entities acting on court order.
The term “foreign infringing web site” is a very important one as it highlights one of the core issues with the bill. The bill forces U.S. law onto foreign entities by inhibiting any business interaction with them. It seeks to cripple infringing web sites by use of an Internet embargo, effectively starving it of payment services, search queries, and domain access. Although this is in itself questionable, matters are made worse by the definition of foreign infringing web site, in which the words or portion thereof allow for an entire web site to be labeled as infringing if only a small unspecified portion actually infringes.
Finally, the bill also makes the streaming of copyrighted works without permission a crime with a first offense punishable with up to five years in prison. This has far-reaching consequences as there’s no way for a service like YouTube to screen everything uploaded to it. Having even a portion of its streaming content infringe on the rights of copyright holders can easily lead to the entire site being taken down. For the gaming community, this is downright fatal. The streaming of gameplay footage, whether live or recorded, is so commonplace and necessary that making it a crime is blatant lunacy. Because of our live streams and images, it could even lead to this very site being taken down, not to mention fan sites which often have even more incriminating content on them.
Interestingly, Activision Blizzard and Vivendi Games have both been completely absent from the list of supporters, likely because these companies actually rely on the streaming of their games as a form of advertisement and community involvement. For instance, StarCraft II relies on player videos to communicate strategies and teach players, and World of Warcraft does much the same. Activision’s Guitar Hero franchise also had an abundance of players recording their gameplay sessions with high scores. In addition to these, Ubisoft has also been absent among supporters. This is particularly notable because Ubisoft has a habit of using highly restrictive DRM practices with many of their titles. Sadly, this is likely a PR ploy as they are a member of the Entertainment Software Association (ESA), which is still listed. Previously EA, Nintendo, and Sony had been listed on the list of primary supporters for the bill; however, it has come to the attention of the press that they have now disappeared from it. Unfortunately, all three of these companies are members of the ESA as well, not to mention that Sony’s music subsidiaries are still listed as supporters. Given this, I have no doubt they did this to save public image.
Thankfully, SOPA is gradually losing supporters among companies with a highly technological consumer base. Initially, the Business Software Alliance also supported the bill. This alliance included big names such as Adobe, Apple, Dell, Intel, McAfee, Microsoft, and many others. It also included the Russian security firm Kaspersky Lab, which threatened to leave the BSA over their support of the bill. The founder of the company, Eugene Kaspersky, notes in his blog that, although he does not support piracy, he cannot support a bill that so blatantly forces the interests of the U.S. onto other countries (due to virtually all DNS servers being located in the U.S.) and is mostly a result of the incompetence of the business world to keep up with the technology world. He states the following:
If we accept this law, hundreds of thousands of lawyers will suddenly appear out of the woodwork because almost any website can be accused of copyright infringement! This law will lead to major legalized extortion. The Internet business faces hard times – look at those who do not want to join SOPA: eBay, Facebook, AOL, Google, LinkedIn, Mozilla, Yahoo, Wikimedia, etc. And the list of SOPA’s supporters? Well, there’s the aforementioned BSA (including Apple, Microsoft, SAP, Symantec and other software developers – this time without us) and, most importantly, this law is being promoted by:
RIAA – the Recording Industry Association of America,
MPAA – the Motion Picture Association of America.
That’s where SOPA stems from!
The result of this threat was that the entire BSA has removed their support of the bill and Kaspersky Lab remains part of the Alliance.
The BSA is not the only defector on this matter. Go Daddy, a large domain name registrar and hosting service, was initially in support of the bill as well:
Go Daddy has a long history of supporting federal legislation directed toward combating illegal conduct on the Internet. For example, our company strongly supported the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, the Protect Our Children Act of 2008, and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT IP). Go Daddy has always supported both government and private industry efforts to identify and disable all types of illegal activity on the Internet. It is for these reasons that I’m still struggling with why some Internet companies oppose PROTECT IP and SOPA. There is no question that we need these added tools to counteract illegal foreign sites that are falling outside the jurisdiction of U.S. law enforcement. And there is clearly more that we could all be doing to adequately address the problems that exist.
However, this support prompted backlash from their consumer base. A reddit user organized a boycott on December 29th, labeling it “Move Your Domain Day.” Though this campaign proved successful by resulting in the registrar changing its position, the exact totals for transfers and deletions on this day is uncertain. The transfer process can take up to a day or more to process and CNET noted that many were experiencing issues transferring their domain, with the receiving registrars being sent incomplete WHOIS information by Go Daddy.
It’s clear that Go Daddy felt the impact: according to data on DailyChanges, starting from the day the boycott was started to the day this article was written, Go Daddy suffered 128,328 domain transfers and 275,038 deletions, for an average of 14,258.66 and 30,559.77 domains, respectively. It’s important to note that these numbers do not take into consideration normal business operation, but to compare, these same numbers one year ago averaged 9,023.44 and 24,513.88. From this, it’s easy to conclude that approximately 100,000 domains were likely lost from this debacle, resulting in a yearly loss of about $1 million if we are to assume an average price of about $10 per domain. In a press release, Go Daddy CEO Warren Adelman related the following:
Fighting online piracy is of the utmost importance, which is why Go Daddy has been working to help craft revisions to this legislation—but we can clearly do better. It’s very important that all Internet stakeholders work together on this. Getting it right is worth the wait. Go Daddy will support it when and if the Internet community supports it.
Piracy can be a problem, but as Eugene Kaspersky mentions in his blog, it can easily be minimized by changing business models. Many of the large groups and corporations in support of SOPA can afford to do this but are generally unwilling out of greed or incompetence. The fact of the matter is, Internet piracy started because business models weren’t up to speed with technology. CD prices were high, and they weren’t as convenient as downloading the one song from the album that you really wanted but couldn’t justify buying the entire album for. The result of that was Napster, and although it fell in the end due to legal issues, it paved the way for a market like iTunes. Unfortunately, the iTunes business model is somewhat imperfect as it does not offer the same quality as a CD does. There are few options to legally purchase lossless quality music and even less options to legally purchase DRM-free lossless music.
Similar issues are happening now with movies. It hasn’t always been feasible to download high quality movies via the Internet, but now that it is, the MPAA hasn’t progressed with the times. The only way to purchase and view a movie is to order a disc through the mail or going to a store and buy one. It’s wholly inevitable that web sites exist for the explicit purpose of downloading them. Hell, renting movies hasn’t progressed with the times either: Netflix has encountered many problems with getting licenses to stream movies for their service and is one of the major factors that led to their price increases and the eventual backlash over them. Even when they do obtain a license to add it to their streaming catalogue, oftentimes it doesn’t possess the same quality that a Blu-Ray or even a DVD would have. Countless are the times I started to stream a movie only to find the aspect ratio in 4:3 or the audio in a meager stereo.
I believe video games are on the right path. Valve has made a big push in the PC world for digital downloads and corresponding lower prices, punctuated by their insane sales and the data to justify them. PSN and XBLA are making better progress in this area; and I think that by the time the next console generation is released, digital distribution will be in full gear. However, the ability of the end user to modify or use their hardware in whatever way they wish has been increasingly threatened by the likes of the major console manufacturers, and I believe this to be a major detriment to progress.
The bottom line is that SOPA is a piece of legislature borne by greed and supported by those in government who don’t truly understand what they’re agreeing to. The contents of this bill label the owner of every gaming stream, fan site, or gaming journal a felon. Not to mention that a single user who made an avatar or signature out of official art could theoretically cause an entire web site to be taken down. All this is to simply sate the greed of corporations who would rather destroy the Internet than develop their business practices to adapt to it. Those in Congress who support it do so because of campaign donations and personal investments with no real understanding of the consequences beyond what can benefit them. The ESA’s support for the bill should come as no surprise, however. Michael Gallagher, the president of the ESA, has always opposed moving the Domain Name System away from U.S. control. This bill legally secures total control of the DNS for the U.S., a viewpoint that he could probably agree with.
Today, Editor Jim Sterling of Destructoid posted an open letter to the ESA:
Dear Entertainment Software Association,
Last year, when free speech in the videogame industry was threatened, you asked for help from gamers. The famous Brown vs. EMA/ESA case provided a landmark ruling that protected videogame content under the First Amendment. You appealed to gamers for their support and coverage, and many gamers rallied around the industry.
Now, when free speech at large is threatened, you not only refuse to fight the threat, you actually join forces with it. You operate a group that claims to protect free speech — the Videogame Voters Network — and pretend to champion the rights of gamers, but until you stop supporting the Stop Online Piracy Bill, that’s all the VGVN is — a pretense.
It is hypocrisy on a most despicable level to continue supporting SOPA after asking gamers to fight for the rights of the game industry. You are sending the message that you want exclusive freedom for your stable of publishers, while the freedom of others means nothing. You are sending the message that the ESA is an organization that begs for help from a community, only to abandon and betray that community at the earliest convenience. You are the Starscream of trade associations.
I find it wholly disgusting that you support SOPA in light of what you pretend to fight for, and what you asked of us all just months before. As other companies dissolve their allegiance with this poorly written, glaringly broken bill, I ask you to do the same. Do not be Starscream. Do for the Internet what you asked the Internet to do for you.
Reviews Editor, Destructoid.com
In using an image of Starscream for a blog header, I could risk becoming a felon. What fun!
Jim brings up the First Amendment rights issue behind the concerns about the bill, but the ESA has never truly stood for protecting First Amendment rights. Granted, they did use that as a defense for why violence in video games is okay, and I fully agree with them on that point. However, it’s important to take into consideration that the ESA is a collection of video game corporations, and this means that they only seek to protect what makes them money. They see piracy as a problem (and to an extent, it is), but fail to grasp the root of the issue. They neglect to see that piracy is rampant due to failures in their own business models and their own draconian DRM practices. Instead, they seek to disable the result of that rather than fix the problem. In a message to Develop, the ESA stated the following:
Rogue websites, those singularly devoted to profiting from their blatant illegal piracy, restrict demand for legitimate video game products and services, thereby costing jobs.
This statement indicates that they truly fail to understand why piracy is so commonplace and fail to recognize the job creation opportunities that fixing their business models would entail. Furthermore, their support of the bill shows that they don’t understand the devastating effect it could have on their own consumers. They seek to protect their IP, and that’s fine; but nobody will be left to purchase their products if they’ve all been labeled felons and thrown in prison or fined an exorbitant amount of money. They practically flaunt this ignorance with a statement regarding the community dissent over the bill:
[The ESA] understands the importance of both technological innovation and content protection, and does not believe the two are mutually exclusive.
They are, in fact, right. The two are not mutually exclusive. However, they seek to stifle innovation rather than progress with it by introducing draconian law that is tantamount to Internet censorship. Google’s CEO has even agreed on this point, saying “The solutions are draconian. There’s a bill that would require ISPs to remove URLs from the Web, which is also known as censorship last time I checked.” When taking this statement into consideration with the time that Google tried to fight censorship in China, it becomes apparent that what this bill intends to do is exactly the same as China. This bill could actually be worse than the great firewall of China simply because the U.S. is in control of the DNS system that underlies the entire Internet. This means when we censor it, we censor it for the entire world. Making this legal will end up spurring an increase of use of the Deep Web and Darknet, something that certainly would not be good for the free flow of information, and also has severe repercussions on Internet security.