The takedown of Megaupload and the gutting of SOPA have made for a dramatic week in the great copyright-versus-technology debate, but they may also mark a good time for that debate to change form.
Megaupload was the second-most popular 'cyberlocker' service, going by TorrentFreak's rankings in August last year. Now it's gone — not at the hands of the stalled SOPA and PIPA or any other new laws, but thanks to existing legislation, chiefly the US Digital Millennium Copyright Act (DCMA) and racketeering laws.
Cue outrage from easily outraged hackers, who responded by attacking the FBI and the Department of Justice, as well as other parties embroiled in the mess, such as Universal Music Group. So far, so predictable. But the Megaupload takedown and associated arrests could and should provide an opportunity for a fresh start in the bad-tempered, increasingly polarised copyright debate.
Now would be a good time for those calling for copyright reform to get off the defensive.
The debate is dysfunctional for many reasons, but this is the big one: people have different ideas of what copyright should entail and how it should be enforced, but right now, only one side comes at the debate from a unified standpoint. Unfortunately for the other side, this argument is wielded by wealthy organisations reacting to the potential of the internet to destroy their business model.
The copyright debate is in a downward spiral, and the only way out is for both sides to come clean about their views.
The rights-holder lobby is very powerful, and it strikes first. It donates money to politicians, it has a lot of well-paid and very clever lobbyists, and it offers an argument that at least has the appearance of coherence.
According to this argument, so-called piracy is causing huge losses to the film and music industries. In the case of Megaupload, the supposed losses totalled "well in excess of $500m [£321m]", despite the fact that those charged are only accused of raking in profits coming to "more than $175m".
According to the Motion Picture Association of America (MPAA) (PDF), "more than $58bn is lost to the US economy annually due to content theft". Therefore, the argument goes, anything and everything needs to be done, as urgently as possible, to stem this haemorrhaging of revenue.
"But no," the other side says, "Those figures are suspiciously high. Where did you get them?" As it turns out, the MPAA figures come from a study that used shaky 'multiplier' methodology to come to its conclusions. And so, we are back to square one, and as usual no one is the wiser as to the real extent of the damage.
The never-ending squabble over damage estimates is symptomatic of the debate as a whole. The rights-holders push, then the other side pushes back. It never goes the other way round.
Pushing back can be very effective, as this week's co-ordinated anti-SOPA website blackout — or "strike", as we would call it in the offline world — demonstrated. In a less harmonised way, constant pressure over ACTA also made sure the trade agreement ended up being far less scary than it might otherwise have been.
But where are the organised, proactive moves against the copying-is-theft, cut-them-off brigade? Could those outside the industry agree on less Draconian new measures? Do existing legal mechanisms such as those used against Megaupload in the US and Newzbin2 in the UK represent an acceptable status quo, or do they need to be scaled back? These are the questions that need to be urgently addressed by those seeking to defend online freedoms.
Part of the problem is, I am sorry to say, an intellectually dishonest streak that pervades much of the anti-rights-holder side. It is a strain of thought — or perhaps lack thereof — that says file-sharers can only be victims, and that discounts any type of copyright enforcement at all.
Can people at least agree that artists are losing out because of copyright infringement? Leaving aside the methodologies for calculating that loss, I believe they can. After all, the rights-holder lobby does represent real artists, as well as corporate bosses. This constant clamour for reform has at least some genuine grassroots support.
'Theft' is not an accurate description of copying, because copying does not involve making the original item disappear.
The problem is real, and it has many causes. On one hand, these causes include unstoppable technological progress and a seeming unwillingness on the part of the rights-holder industry to embrace that technology rather than fight it. On the other hand, however, are factors that include people who knowingly and actively profit off the copyrighted works of other people.
Rights-holders are, some of the time, fighting against bad guys. Much of the sharing culture is by definition altruistic, but those who make millions off cyberlockers and other file-sharing services are not doing it for the common good. I loathe the term 'online piracy' for its inaccurate characterisation of what is often well-meaning sharing, but I believe it applies here in spirit. These people are the real pirates of the online world, and not the jolly sort.
Equally, 'theft' is not an accurate description of copying, because copying does not involve making the original item disappear. However, it is hard not to get a sense of thievery when huge amounts of cash are involved.
Those fighting against rights-holders and trying to win over under-informed legislators have to be honest about the problem, and about their motivations. I do not believe...
...that this very loose collective is completely against the notion of copyright and in favour of letting anyone make money off the work of others as they see fit, although if it is, then let it argue its case.
What I do believe is that the movement is broadly in favour of modernising the concept of copyright and encouraging new, legitimate business models that flow with the evolution of distribution technology.
But this will almost certainly have to go hand-in-hand with enforcement of some kind. To call for reform of the carrot but not of the stick is intellectually lazy, dishonest and guaranteed to result in failure.
The reform movement needs to be the one reaching out to the lawmakers — in public, as too much of this debate has gone on behind closed doors — and not the one acting defensively all the time.
Now is the time for co-ordination. The rights-holder lobby is an international movement, and a very well-coordinated one at that. The other side needs to form its own broad-spectrum global alliance with some kind of unified mouthpiece, and that group needs to come up with honest, proactive, helpful responses to the problem that exists.
If people want to come up with a system that is genuinely fair, they need to agree on and actively promote penalties for those who abuse that system in unfair ways. If that doesn't happen, there is no way any politician will take the side seriously. At worst, those calling for positive reform without real enforcement will get lumped in with those who only want to profit at the expense of others.
To call for reform of the carrot but not of the stick is intellectually lazy, dishonest and guaranteed to result in failure.
None of this is to say that those calling for positive reform have had a fair chance to express themselves. The system is grossly tilted in favour of the rights-holders, and 'negotiations' over ACTA, SOPA, the UK Digital Economy Act have been deliberately lopsided. This situation needs to change before a counterargument can be heard, but that counterargument has to be readied for its airing. It already exists in fragmented form, but it needs to be honed, immediate and overwhelming.
SOPA is wounded, possibly mortally so. Without wishing to presuppose the outcome of the Megaupload case, the actions taken around the company's proprietors at least show that current laws can be used to knock out large-scale, profit-making infringement operations.
Now is the time to build an international forum for reform, to solidify a coherent approach to copyright infringement and enforcement, and to make that argument heard.
There are other cyberlockers, and there will always be ways to get around copyright-enforcement measures. There will be a 'son of SOPA' law at some point, maybe soon. None of this is edifying. No one is winning here — not the artists and certainly not internet users who just want easy, fairly-priced access to what those artists produce. With zealots on both sides, the scenario risks becoming openly destructive.
Now is the time for everyone to come to the table on just terms, and for both sides to start making sense. Tricky as it is, that involves defining what is right and what is wrong.