Rights and wronged

ILLEGAL copying and sharing of copyrighted material is hard enough to stop within a country. But when the internet takes traffic across borders it is almost unmanageable. American-owned intellectual property, say, may be uploaded in one country and downloaded in a second, via a website whose computers are in a third, operated by anonymous enthusiasts (or criminals) from goodness-knows-where. So whom do you sue, and in which courts? The Stop Online Piracy Act (SOPA), now before America's Congress, is the latest of many recent attempts to defend property rights on the internet.

The bill aims to cut off Americans' access to foreign pirate websites by squeezing intermediaries. Rights-holders, such as Hollywood film studios, will be able to request that a credit-card firm or advertising network stop doing business with a foreign site; or ask a search engine to take down links to the site; or ask an internet-service provider to block the site's domain name, making it harder to reach. The intermediary then has just five days to comply or rebut the complaint; after that the rights-holder can go to court.

This would rope intermediaries into law enforcement to an unprecedented degree, and give rights-holders exceptional power. Critics of the bill say that takedown requests and court orders will swamp smaller firms and start-ups. They say that blocking entire websites via their domain name smacks of censorship, and that determined downloaders will anyway find the block easy to bypass.

Two mighty coalitions have formed around SOPA. Supporting the bill are not only film studios and music labels, but also drug firms and other manufacturers. Though SOPA itself does not affect them, they have a big interest in fighting any kind of intellectual-property infringement. On the other side are internet companies, technology investors and digital activists, who share an interest in disrupting business models and a dislike for anything that smacks of old-fashioned regulation.

Online narcotics

Constantly changing technology makes data on piracy unreliable. Monitors struggle to distinguish the effect of deterrence from the rise of easy, cheap alternatives to piratical downloading, such as legal online music services. Nor do they know how much piracy has cut legal sales of music and films, and how much blame should go to shifting consumer tastes. But the fight against intellectual-property theft is waged hard. It resembles a bit the fight against illegal drugs: clamp down in one place, and the trade sprouts elsewhere.

The Social Science Research Council, an American non-profit body, found in a study this year “little evidence—and indeed few claims—that enforcement efforts to date have had any impact whatsoever on the overall supply [of pirated media].”

With great effort, courts have closed or hampered some big “peer-to-peer” file-sharing sites (these allow users to swap files without going via a central computer). But others spring up in their place. The International Federation of the Phonographic Industry (IFPI) estimated that music-sharing doubled between 2006 and 2008.

Growing even faster, though, are cyber-lockers such as RapidShare. These let people share links to files they have uploaded to the “cloud”, the huge arrays of easily accessible servers that host all manner of data. A few such cyber-lockers (largely out of the direct reach of American justice) now have more visitors than the top peer-to-peer sites. Illegal streaming services and piracy via mobile devices, the IFPI says, are the next big threat.

In the eyes of rights-holders, the law seems shamefully lax. In 1998 America adopted the Digital Millennium Copyright Act, which criminalised many of the methods used to copy digital content, but also established “safe harbours”, explicitly protecting intermediaries such as search engines and social networks from prosecution for their users' actions. Several other rich countries have similar laws. The pirates just moved their illegal activity to looser jurisdictions, such as Sweden—while still benefiting from American-based search engines and payment systems. Now the rights-holders see intermediaries as the only point where they can choke the illegal trade. “This is the last stand—the guys who have the pipes,” says Peter Mensch of Q Prime, which represents bands such as Metallica and the Red Hot Chili Peppers.

Intermediaries are under fire on other fronts too, notes Viktor Mayer-Schönberger of the Oxford Internet Institute. Google, for instance, faces a number of lawsuits in Europe for providing links to material that breaches privacy laws. A handful of European and Asian countries have adopted or proposed “graduatedresponse” laws. These oblige internet-service providers to shut off service from users suspected of downloading illegal files (they get two warnings first).

This approach is working, argues Frances Moore of the IFPI. In South Korea, one of the first places to adopt such a law, most people stop downloading files after the first warning and most of the rest stop after the second, she says. In Spain, which passed an anti-piracy law only in March, music sales have dropped faster than the global average. In 2010 Nielsen, a market-research firm, estimated that 45% of Spanish internet users visited illegal music-distribution services, against 23% in the top five European markets.

This deterrent may fade over time, though. Nailing offenders can be tricky, since people often share an internet connection and it is hard to prove which of them used it to download files illegally. The Recording Industry Association of America sued thousands of people in 2003-08 for file sharing. After an initial fall, piracy soon started rising again.

Compared with other countries' anti-piracy laws, SOPA is indeed draconian. But the real row is about how content should be distributed and paid for. The bill's supporters want this to change as slowly as possible, so they have time to adapt. Opponents want to see more rapid changes in business models to speed up overdue innovation: cheaper pricing in poor countries, more use of on-demand digital services, less exclusivity in distribution, and ultimately, less reliance on selling albums and DVDs. Yet self-interest is at work on both sides: many of the bill's critics are trying to create just these kinds of business.

Neither piracy laws nor newfangled ideas offer creative types a reliable path to prosperity. Services that provide legal music over the internet pay out little in royalties. Only the biggest bands really do well out of touring—and to become big they need to sell albums, says Mr Mensch. No law can do much about that.