Tuesday, December 23, 2014

The Sony Hack Attack

There are many dimensions to the hack of Sony that, by all accounts, now appears to be a North Korean cyberattack. Certainly, the attack ought to make us all aware that, regardless of debates about the niceties of the labels applied, the U.S. has entered a new era in which cyberwarfare (and response to cyberattacks) will constitute an important element of our national security strategy.

Here, I want to make just a couple of points – briefly.

It is easy, without having access to all the facts, to second-guess Sony’s decision to cancel the initial theater release of “The Interview.” For example, there is ongoing back-and-forth as to whether the theater owners (all or some large number of owners) made it clear that, in any event, they would not screen the film. For me, it is understandable enough that Sony (and/or the theater owners) would put threats to the safety of their patrons high in their calculations concerning whether to go ahead with the film’s release.

That said, I certainly hope Sony will find a way, and there seem to be several avenues, to get the film into the public realm without much further delay. Otherwise, an unfortunate precedent will be set. So, the film needs to be released, one way or the other.

Now, it must be said that it is unfortunate that some are taking pirated emails – emails that were seized through an illegal cybertattack – and are using them in an opportunistic fashion. And this goes beyond the mere gossip concerning Hollywood rivalries and personal sniping. I have in mind, for example, Google’s use of some pirated emails to and from film studio personnel and the studio’s trade association, MPAA, to raise fears that MPAA is trying to orchestrate a revival of the Stop Online Piracy Act (SOPA) legislation that had been intended to help curb the very real – and very costly – ongoing problem of online piracy.

Here is a December 18 blog posted by Kent Walker, Google’s SVP and General Counsel, claiming that MPAA is engaged in some type of “coordinated campaign” to revive the SOPA legislation that a Google-led effort defeated back in 2012. A quick perusal of the emails cited by Google (the Google blog itself refers to an article posted on The Verge on December 12) does not appear to me to support the claim that the MPAA is seeking to revive the SOPA legislation. Instead, it appears that Google opportunistically may be trying to use the pirated emails to divert attention from probes by state and federal authorities into its own conduct.

There can be legitimate debates concerning the merits of the actual SOPA bill that was withdrawn in 2012 or similar SOPA-type legislation. In my view, the attacks on the legislation, and the frenzied claims made concerning the impact of the legislation on the working of the Internet, were exaggerated. Be that as it may, there shouldn’t be any debate that online piracy – that is, the unlawful theft of someone’s intellectual property – is a real societal problem. And you don’t need to wade into a battle of estimates concerning the precise dollar size of the economic losses resulting from pirated content to know that they amount to many hundreds of millions of dollars and thousands of jobs each year.

At the end of the day, what is most disappointing about Google’s blog is that there is no acknowledgment that online theft of intellectual property – whether films, music, or other creative content – is a real problem that needs to be addressed by many different participants in the Internet ecosystem, including by online purveyors of content like Google.

Perhaps SOPA or SOPA-type legislation is not the right answer. But “SOPA” should not now be invoked as a ghostly mantra in a way that is intended to impede what ought to be a collaborative search for the right answers to combat piracy of intellectual property.

PS – I should add that theft of intellectual property is a problem that requires addressing for more than reasons relating to economic losses. The reason our Founders included the IP Clause in the Constitution had as much to do – really more to do – with an understanding that creators are entitled to realize and control the fruits of their labors than anything else. In that regard, and for a deeper understanding and appreciation of foundational principles of intellectual property rights, I commend to you the Free State Foundation’s series of papers on foundational principles of intellectual property:

The Constitutional Foundations of Intellectual Property – May 10, 2013

Reasserting the Property Rights Source of IP – June 13, 2013

Literary Property: Copyright's Constitutional History and Its Meaning for Today – July 25, 2013

The Constitution's Approach to Copyright: Anti-Monopoly, Pro-Intellectual Property Rights – August 26, 2013

Constitutional Foundations of Copyright and Patent in the First Congress – May 8, 2014

Life, Liberty, and the Protection of Intellectual Property: Understanding IP in Light of Jeffersonian Principles – July 8, 2014

Intellectual Property Rights Under the Constitution’s Rule of Law – September 26, 2014

Reaffirming the Foundations of IP Rights: Copyright and Patent in the Antebellum Era – November 20, 2014