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
The
"Reason and Nature" of Intellectual Property: Copyright and Patent in
The Federalist Papers –
January 14, 2014
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
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