After a spirited groundswell that had been building over the past few weeks finally overflowed into the mainstream media yesterday, it appears that SOPA (the House bill known as the Stop Internet Piracy Act) and its sister bill in the Senate, PIPA (the Protect IP Act), are on life support, if not dead. After President Obama expressed concern about some of SOPA’s measures over the weekend, several legislators have now indicated that they have misgivings about the bill.
For those hiking in the Congo yesterday, Google, Wikipedia and other Internet advocates went “black” to protest SOPA. Others, including Mark Zuckerberg of Facebook, also made their public opposition known to the bill. There were 2.4 million tweets yesterday about SOPA, and I am willing to bet virtually all of them were anti-SOPA. The debate has been cast as a parable of Old World technology (lumbering Hollywood) v. New World technology (nimble innovators) but it can probably be shoehorned into whatever narrative a writer or blogger wants.
It would be fair to say that the majority of those for and against SOPA agree with its purpose — namely, addressing or preventing the wholesale theft of copyrighted materials (i.e., bootleg movies, videos and music). However, where they differ, not surprisingly, is on the means of addressing those concerns. For a balanced summary of the arguments of both sides, check out this link. People whom I follow and respect (such as Eric Goldman’s Technology Law & Marketing Blog, Ron Coleman’s Likelihood of Confusion Blog and Tim O’Reilly’s many media missives) have been pretty critical of SOPA.
I don’t have a dog in this fight. As a distant observer of the fray, I tend to agree with the opponents of the bill that some of the proposed procedures for attacking the alleged piracy and counterfeiting under SOPA seem heavy-handed.
SOPA’s success or failure should not directly affect trade secret or non-compete law, as SOPA is primarily directed at copyright, counterfeiting and piracy misconduct. However, if SOPA does ultimately fail, my fear is that it could be perceived as a further erosion in the larger battle of protecting IP rights over the Internet or generally in our society. Let’s be honest: There is a subtle but increasingly pervasive view by many that all information should be shared and that no one person or company should have the right to any information. That view now permeates our dialogue about technology and its role in our world. We can debate the cause of that view (i.e., fraying of the employer/employee relationship, the fruit of Napster and unlawful file-sharing, bad economy, greater temptation posed by technological advances, decline in moral and ethical values), but we really can’t dispute that it is out there and that it is growing.
At the micro level, that view, through the process of osmosis, might influence an employee’s decision to walk out the door with source code or strategic documents because that employee concludes that his employer has no right to exercise ownership over that information because it really should not “belong” to anyone. It is this corrosive assault on basic standards of ownership that concerns me. In that respect, SOPA’s over-reach and its apparent defeat would not be a good thing for the trade secret community.