SOPA/PROTECT IP Would Be Hideously Bad For Video Gamers

from the our-rights-are-not-a-game dept

Jennifer Mercurio is the Vice President and General Counsel of the Entertainment Consumers Association (ECA), the nonprofit membership organization which represents gamers in the U.S. and Canada.

If a pair of bills on Capitol Hill, called the Stop Online Piracy Act (SOPA) and PROTECT IP, pass, you could be fined and thrown in jail for streaming (i.e., "performing") your video game speed runs or game play. Just as people post cute pictures and videos of themselves, their pets and their kids singing and dancing to copyrighted works, gamers of all ages routinely post pics and stream video of themselves during game play. All of these things have, for the most part, been considered "fair use" under the law. Tens of thousands of videos currently available online featuring game play from popular games like Call of Duty, Halo, Starcraft and others could be made illegal under these laws.

Since games also rely on the unique and fresh content that gamers create structurally and within game play, SOPA/PROTECT IP would freeze such innovation. Creative new works developed out of the technology of video games could be stifled by these new laws. Machinima, or videos created using in-game tools such as in Red vs. Blue, may never have come about if SOPA/PROTECT IP were in place.

There are also serious "due process" issues with SOPA/PROTECT IP.

Under constitutional due process, if the government prosecutes you, you must have the ability to defend yourself before being penalized; and the prosecution and governing board must be a government body, not a private company such as YouTube, or a ratings entity like the Entertainment Software Rating Board (ESRB). The Digital Millennium Copyright Act (DMCA) presently mandates that a take-down notice regarding potential infringement must first be sent to the Internet service provider or host, which then must comply, if it wants to retain its so-called "safe harbor" protection. However, the alleged infringer can then send a counter-notice stating basically, "no we're not infringing, here is why." Under the current safe harbor provisions, the service provider is then required to put the material in question back up in 10 days if there is no further action taken on the part of the content owner.

Here, SOPA/PROTECT IP forgo even this slight due process. These bills lack the provisions requiring the providers to put the material back up following a counter notice. Instead, the incentives are for service providers to keep the content down. Furthermore, a court order via a judge could require payment processors and ad networks to cut off service, before sites are convicted of any wrong-doing. The accused would then need to defend themselves. In other words, the impact of the bill is that they are found guilty before their day in court.

The legislation would also allow Internet companies hosting the content to arbitrarily set standards regarding various classes of works and amateur performers and demand removal of content or petition the government to outright block access to websites, creating an Internet government-sanctioned blacklist.

Internet service providers (ISPs) that are part of a corporation which creates content, such as Comcast, could also then use these laws for anti-competitive practices, arbitrarily enforcing/not enforcing potential infringements of their content or their competitors. Where NBC and G4 could be weaponized and empowered... the potential for abuse is staggering.

SOPA/PROTECT IP would also strip the limited defense websites enjoyed under DMCA, and sites could be considered liable for the worst of the worst user, which means that they'd need to penalize all users to protect themselves. Since the bills allow actions against suspected sites, as opposed to just convicted sites, all Internet sites would need to chill the speech placed on them in order to avoid potentially crippling legal responses. Thus companies and sites like Justin.tv, Twitch.tv, Ustream.tv, Tumblr.com, Facebook, YouTube, Google+, Blogger and Wordpress, which used to be immune from prosecution for the content posted on them, would now need to monitor every communication, if they wanted to avoid liability. This will result in a chilling effect across the web.

Further, several experts have warned that the domain name system (DNS) filtering requirements of PROTECT IP would weaken Internet security and stability. The filtering provisions would not serve their goal of lowering piracy, but threaten the security and stability of the global DNS. Further, they would undermine the universality of domain names, which has been a backbone of how the Internet is navigated. The experts warn that many of the tools and stated goals of both the government and business related to prevention of cyber attacks and Internet security would be undermined by these bills.

SOPA/PROTECT IP also relies on copyright holders setting arbitrary standards regarding economic impact and prosecution for various classes of works and amateur performers. Since items posted to the Internet can be accessed immediately and universally, copyright holders could claim every post would be extremely costly.

These bills could impede or block constitutionally protected speech. This point is especially troublesome in the shadow of the great video games speech victory earlier this year, Brown v EMA, where the Supreme Court finally held video games to be such protected speech in their own right.

Since we already have laws covering this area on the books, it defies logic to further burden American consumers in these arbitrary and capricious ways. The ECA stands in opposition to these bills. To lend your voice, check out our free online tools, read more about the subjects or help us fight for our rights, visit: http://theeca.com/video_gamers_rights

Filed Under: copyright, due process, protect ip, sopa, video games
Companies: eca