I’m a lawyer but I’d rather be a pirate

Roses are red
Violets are blue
The war on piracy
Will never be through

No, I wouldn’t literally rather be a pirate. I’m just saying that if I had to choose between being the lawyer trying to decipher the legislation being developed to try to take on piracy, I think I would rather be the pirate.

Don’t get me wrong — I’m not advocating that piracy is acceptable. It’s just that the more I read about what industries are doing to self-regulate and defend against piracy, the less convinced I am that drafting legislation that is nearly impossible to decipher — let alone put into practice — is necessarily the answer. It probably sounds like an oxymoron to say that legislation is reactive when it takes so long for a statute to come into force, but to a large degree that is exactly what it is.

Take PIPA (protect intellectual property act) and SOPA (stop online piracy act) for instance. These two pieces of U.S. legislation were in fact pulled back by the Senate and the House of Representatives last month because their sponsors decided that it might be wise to take a step back. That, and the implicit threat from the White House that it would veto the legislation.

Additionally, industry pressure from sites like Wikipedia, which went dark for 24 hours, and Google, which blacked out some of its homepage to certain users, along with harsh criticism of the adverse effect the legislation would have on legitimate businesses seems to have led, if not to the ultimate demise of legislative regimes such as these, at least to a more thoughtful re-consideration of the impact reacting to piracy might have on the business the legislation supposedly seeks to protect.

Wikipedia and Google weren’t alone. Canadian sites like Tucows and Michael Geist’s popular blog also joined the protest against these bills by going dark. The impact of SOPA would have been felt in Canada as well because the proposed statute considers domain names ending in .com, .org, and .net to be captured by the law which, as Geist has opined, would effectively grant the U.S. jurisdiction over web sites in Canada.

Interestingly, not everyone is supportive of SOPA, including the film, recording, media industries, and, somewhat less surprisingly, the pharmaceutical industry. Canada’s own bill C-11 (the copyright modernization act) that seeks to prohibit piracy arguably imposes, among other things, burdensome restrictions upon legitimate usage of copyrighted materials. Attempts to reform Canada’s copyright legislation are still being made, but the journey has been slow, which, quite frankly, probably isn’t such a bad thing. Just because the U.S. does something or wants Canada to follow its lead, it doesn’t mean we have to.

Putting aside the pressure to pass laws that will probably have a net effect of hampering the industries they are supposed to seek to protect — take the European Union’s latest privacy laws for example — it seems to me that it behooves companies to be creative and develop their own solutions. And they are.

Take the video game industry for instance. This multibillion-dollar industry isn’t sitting around waiting for governments to enact anti-piracy legislation. Video game companies like OTOY, which developed its own proprietary codec, have taken to the cloud. By using cloud-based services, companies are able to offer consumers games that are accessible in a way that doesn’t require them to download anything or go to a physical store. Gamers can stream directly onto virtually any mobile device or computer without any storage required — which means that illegal hacking and distribution becomes a much more difficult thing to do. Clever thing that.

Yes, it’s quite easy for me to be an armchair critic, but I do believe that when it comes to legislative reform of any sort — be it anti-piracy or otherwise — legislators can do better in terms of creating meaningful laws that thwart and punish while limiting the impact to companies legitimately trying to do business. In the meantime, as evidenced by the music industry, companies simply can’t afford to wait around to see what the lawmakers are going to do.

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