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Opinion: ESA and SOPA - between a rock and a hard place
Opinion: ESA and SOPA - between a rock and a hard place Exclusive
January 4, 2012 | By Chris Morris

January 4, 2012 | By Chris Morris
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    37 comments
More: Console/PC, Exclusive, Business/Marketing



It can't be a lot of fun working at the Entertainment Software Association these days.

SOPA the Stop Online Piracy Act is front and center in the headlines again, as opponents to the legislation shine the spotlight on companies and organizations supporting the bill. That, predictably, has whipped up the forces of Anonymous and other shadow groups, who are calling for DDoS attacks and other forms of public shame.

As you've likely heard by this point, one of the groups supporting SOPA is the Entertainment Software Association. And while it's easy to point an accusatory finger at the group, they're actually caught somewhat in the crossfire here.

The ESA, as an entity, exists for one reason: To protect the interests of the video game industry and its publishers. And SOPA, at its core, is a bill that will help do that.

Is it overreaching or overly broad? There's certainly a case to be made in favor of that. And there are plenty of big names opposing it, including Facebook, AOL, Yahoo and Google.

But those companies all have business reasons to worry. They all link to content regularly. And the legislation would give copyright holder the power to take legal action when it discovers a site is infringing upon that copyright, possibly including those that embed such a link.

Actions could include demanding that search engines and social networking sites block access to the site; advertisers cease doing business with the accused site; and internet service providers block access. You don't have to be a genius to figure out that an ISP blocking Google is a big deal.

But the ESA doesn't link to anything. Thus, it has little, if anything, to lose by supporting SOPA, other than goodwill. In supporting the legislation, it's doing its duty to protect publishers, who lose tens, if not hundreds of millions of dollars each year to piracy, according to the trade group.

(Although, to be fair: The dollars-lost figure is a squishy one, as it presumes people would have bought the game in the first place if piracy hadn't been an option an assumption that is far from certain.)

Of course, in doing what it believes is right for the industry as a whole, it's angering some of the people in that industry. While many corporations and trade groups might support SOPA, it's pretty tough to find an individual who does.

Nathan Fouts, formerly of Resistance developer Insomniac, and the founder of Mommy's Best Games, made an impassioned and cogent appeal to developers asking them to help convince their companies to get the ESA to reverse course. And he's not alone.

But those parties are fighting an uphill battle. Sony's alleged support, through the ESA, brought new threats from Anonymous, which played a part (though how extensive has yet to be determined) in last year's hacking of the PlayStation Network.

"Supporting SOPA is like trying to throw an entire company from off a bridge," the group said in its usual bombastic style. "Your support to the act is a signed death warrant to Sony Company and Associates. Therefore, yet again, we have decided to destroy your network. We will dismantle your phantom from the internet. Prepare to be extinguished. Justice will be swift, and it will be for the people, whether some like it or not. Sony, you have been warned."

Most game companies are staying silent on their position on SOPA. They're using their trade group to fight the battle for them now. That's not scurrilous. It's the job of a trade organization. And while the law remains distasteful to many people, this is a case where the ESA is in a spot where it's essentially impossible to win.

If it continues to support SOPA, it loses gamer goodwill big time. If it doesn't, however, it goes against its own charter and risks the support of its publisher members.

In either event, it's not an enviable spot to be in.

[Addendum: There seems to be some misunderstanding about a line in this column -- and since this is such a hot button issue, it's worth clarifying. Like a lot of you, I'm not a fan of SOPA -- and certainly wasn't trying to defend it here. The point of the story was the ESA sees this as a tool to help it defend publishers.

The main bone of contention seems to be the sentence "And SOPA, at its core, is a bill that will help do that." My point was that, while the bill is incredibly flawed and can be overreaching, SOPA does have the potential to help stop the spread of pirated content. It, unfortunately, does so with an incredible amount of overkill and collateral damage. It's using a nuke to get rid of a cockroach -- but the cockroach is dead all the same.

It doesn't make it right, but hopefully it gives insight into why the ESA is supporting it.]


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Comments


Michael Herring
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"And SOPA, at its core, is a bill that will help do that."



Stop that! No, it does not. This bill has risky implications for any game developer who supports user generated content. It should not be supported in its current state.



This should be neither a difficult nor painful choice for the ESA: the bill should not be supported. It will not stop piracy, and it exposes content creators to even more unnecessary risk than the DMCA currently does.



(You also have a typo (edit: fixed) in this article. As early as the first line, even.)

Bowen Turetzky
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This ^^

Joe Wreschnig
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User-generated content nothing, this bill has risky implications for any game developer or publisher who dares to host a forum or blog with comments!

Michael Herring
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Absolutely Joe, but while a website shutdown is bad enough, having your game's content/multiplayer server become unreachable because someone uploaded a pop song is insane. Unfortunately, it is a feasible situation should SOPA or PIPA become law.

Joe Wreschnig
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@Michael,



My point is that just hosting a forum is enough to get your game shut down. One of the main legal "remedies" of SOPA is shutting down DNS service for a domain. If your game and your forum share a domain name, a post on your forum can shut down your game.

Michael Herring
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Totally agree, Joe. Disappointing that this part of SOPA/PIPA was not covered in Chris' article.

Jason Pineo
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Interesting. Thank you for putting the ESA's position in a clearer light.



Does the ESA show any signs of reservation regarding the apparrent potential for abuse of SOPA? Are they backing it guardedly or in an unqualified way? What does this backing translate to in a pragmatic sense? Money? A vote? A bunch of votes? Moral support?



Just because they have a job to do in protecting the publishers from the squishy ravages of 'piracy' doesn't mean they can't do it intelligently. I see no reason why they couldn't make a stand against SOPA and call for a better-written piece of useless legislation.

Michael Herring
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Has this author actually put the ESA's position in a clearer light with this article? Or shed any light at all?



There are no quotes from the ESA, and a large portion of the article is analysis and quotes regarding SOPA's *detractors*. There is no evidence or argument as to *how* SOPA's provisions will reduce piracy, only that it somehow *will*. The article even undercuts its own point about the usefulness of "lost dollars" statistics used in support of SOPA.

Joe Wreschnig
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@Jason,



Money and moral support. http://mediamatters.org/blog/201112060011 for example.



I see you're Canadian so maybe you're not familiar with how this kind of funding works in the US. In the short term, lobbyist groups (ESA) pump "small" amounts of money into election campaigns and get bills they like sponsored and voted on. That money is small because it's legally limited and likely to attract attention. Once those elected representatives leave office, they're guaranteed cushy, highly-compensated "consultant" jobs in the industry that funded the lobbyist group.



"Moral support" in US politics means testifying as an 'expert' before congress or a congressional committee. That means the ESA is getting up in front of elected representatives and saying "yes, the games industry really wants this law." Except that's an outright lie insofar as people other than Kotick, Riccitiello, etc. compose "the games industry."

Robert Green
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@ Jason

"I see no reason why they couldn't make a stand against SOPA and call for a better-written piece of useless legislation."



A better-written piece of useless legislation? I think you've hit the nail on the head there. I see SOPA and the controversy over it as moving us one step closer to the inevitable truth: there is no 'solution' to issues of copyright and piracy that both producers and consumers agree with, and I highly doubt there ever will be. And the sooner we can agree on that, the better.

E McNeill
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"The ESA, as an entity, exists for one reason: To protect the interests of the video game industry and its publishers."



This is much like arguing that public corporations exist only to create wealth for their shareholders. I'd like to think that the people behind corporations (or even associations of them) can still choose to exercise their conscience. Can a corporation still have a concept of right and wrong? I sincerely hope so.



Maybe the ESA really does exist to support the business with no regard for other values. But if that's the whole truth, it's one that needs to be changed.

Alexander Jhin
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EA, Nintendo and Sony have all withdrawn their open support for SOPA: http://www.electronista.com/articles/11/12/30/nintendo.and.sony.r
ethink.unpopular.sopa.bill/

Jason Pineo
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Nice to see that. However, I think we need to press them for a firm rejection of SOPA to eliminate the possibility that they are just letting ESA support it for them. I think we deserve that much from them.

E Zachary Knight
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That article is based off the horribly inaccurate Business Insider article. There was never any public statement of support for SOPA or PIPA by any of those companies. They were never included on the Judiciary's list of SOPA supporters:



http://www.techdirt.com/articles/20120103/00304017255/no-sony-ele
ctronics-nintendo-ea-have-not-publicly-changed-their-position-sop
a.shtml



EA has even stated that they have never held an opinion on SOPA either for or against:



http://www.techdirt.com/articles/20120103/11314417262/ea-we-have-
never-taken-position-either-way-sopa-pipa.shtml

Joe Wreschnig
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"To protect the interests of the video game industry and its publishers. And SOPA, at its core, is a bill that will help do that."



Utter, utter bullshit. Shame on you Chris Morris for perpetuating this lie, and shame on you Gamasutra editors for being an uncritical vehicle for it.

Kris Graft
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Hey Joe,



In the few instances Gamasutra has served as a vehicle for SOPA-related content, we have had pieces that are very critical of the measure, including Nathan Fouts' blog (which we editors featured on the front page and linked to in this story) and a front page video game criticism roundup that speaks out against SOPA, outlining how detrimental it could be to the games industry. So it's not like we're all "hurrah SOPA," because we're not, and our site reflects that.



I'm not going to defend every aspect of Chris' opinion here, and certainly not SOPA, which in my own opinion is frightening in many regards, especially to game devs. But this opinion was an exercise by Chris to try to understand why the ESA would possibly be cornered into taking a stance that seems so utterly against important interests of its members. Obviously that doesn't mean that you can't completely, utterly and understandably disagree with such definitive statements as how it's "a bill that will help [protect publishers]," but in general, that's where he's coming from -- trying to shed light on the other side.

Joe Wreschnig
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@Kris,



"But this opinion was an exercise by Chris to try to understand why the ESA would possibly be cornered into taking a stance that seems so utterly against important interests of its members.



Chris is entitled to engage in whatever intellectual exercise he wants, or even honestly hold that opinion. That doesn't make him right. That doesn't mean you must, or should, publish it.



What you are making is essentially an argument to moderation (aka, the fallacy of the middle ground) - some people believe A, some people believe B, therefore the truth must lie somewhere between A and B. The problem is, sometimes the people who believe B are just wrong.



If he wanted to write about how the ESA was cornered into this position, he should've written about how the ESA was cornered into this position. But he didn't do that. Rather he asserted that the ESA was cornered. From that he proceeded to the assumption there must have been a reason for that, and hit upon "SOPA, at its core, is a bill that will help do that."



If he wanted to understand how the ESA would be cornered, he should've gotten the ESA to talk about which of its members asked it to take this position on SOPA, and then talked to these members.



Instead he wrote a journalism-lite "view from nowhere" bullshit piece.

E McNeill
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Joe: You can make a lot of good arguments against the article itself, but I don't think you're justified in attacking Gamasutra for publishing it. When it's clearly marked "Opinion", publication is not endorsement. If the Gamasutra editors were to ask Chris for an opinion piece, then refuse to publish it unless it agreed with their own consensus, then it would be censorship.

Joe Wreschnig
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@E,



Gamasutra has no legal or ethical responsibility to publish trash or hire people who write trash.

Kris Graft
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@Joe



Hm, Gamasutra publishes trash and hires trash writers now! I guess this is where I walk away from this great discussion.

Joe Wreschnig
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@Kris,



I didn't say Gamasutra publishes only trash. I don't even think it publishes majority trash. There's a reason I'm leaving comments here but not on, say, Gawker or AOL. I think Gamasutra is *mostly* a good site and publishes *mostly* good writing. But this article is trash, and it was published by Gamasutra.



But E McNeill's claim that not publishing a fallacious, poorly-researched, poorly-written article - one that you've already tried to recast from "opinion" to "exercise" - would be censorship is ridiculous. I hope you can agree to that. Otherwise, I have an awful lot of opinions I'd like to demand you publish!

E McNeill
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@Joe: I suppose my problem with your attack is just due to the difference in the severity of our disagreement with the article. I think it's misguided, but not fundamentally unreasonable. You think it's utter bullshit. Gamasutra, as an entity, seems to fall closer to my camp. I hope you can respect this difference in opinion, even if you can't respect the opinion from the article.



@Kris: Similarly, I think your dismissal of Joe is too quick. He may be wrong and too harsh, but "trash" and "bullshit" seem like fairly normal language among impassioned critical internet comments, and he's at least trying to communicate an intelligible argument. You don't have to engage with him (leaving it at your first reply would be understandable), but he's no troll.

Joe Wreschnig
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@E,



"Bullshit" is actually a word I've used for several years with technical precision, after reading http://www.amazon.com/Bullshit-Harry-G-Frankfurt/dp/0691122946/. I use it not because I disagree with the article (which I do), but because the article does nothing to support itself. It puts what I would've expected to see as conclusions ("the ESA is between a rock and a hard place") as unsupported statements in its introduction, proceeds to analyze the unjustified universe of its own creation, and then "concludes" vapidly.



I hope we have not reached a point in society where it is unacceptable to declare something of no value "trash"! If Gamasutra was a print publication this would be a literal description, as I would have thrown it out upon reading this article.

Michael Herring
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Joe,



Thanks for the reference to "On Bullshit." Best book I read in undergrad, it should be required reading for all fields at that level.

Shay Pierce
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I just love that Anonymous exists and can give us quotes like that one. Makes me feel like I'm living in a William Gibson novel.

Jonathan Murphy
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I've seen people on youtube doing nothing illegal get their accounts taken down by angry 13 year olds under false copyright flags. One guy made a joke about Rick Perry and his video got taken down. That was scary how the freedom of speech got trampled so easily. Like the idea of getting a felony for some kid making a false claim against your own site? We need more due process. Not less. Shame on anyone who didn't research SOPA.



Truth About SOPA-

http://www.youtube.com/watch?v=WJIuYgIvKsc

Paul Shirley
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SOPA is (in part) a barely disguised attempt to rectify the major perceived problem with DMCA: that you need to *actually* own the IP being taken down, under penalty of perjury.



Right now no-one abusing the DMCA (a daily event) or the voluntary takedown options YouTube and others offer are ever being dragged into court - but it could and eventually will happen. Worse still, its easy to challenge a false takedown and have it reversed.



SOPA fixes all that by switching to suspicion of infringement, translation: if somehow you complained but were wrong, no penalty. Or put another way, guilty (and punished) until proven innocent. Personally I believe the possible abuses are in fact the intended outcome and no-one should be supporting this unless they hate freedom.



If ESA wants to do it's duty it should be fighting for sane legislation instead of an authoritorian trojan horse that just looks like it might do the same job.

Kris Graft
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Hey Folks,



Our editor-at-large Chris Morris issued an addendum, as you'll see at the bottom of the original piece.

Joe Wreschnig
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"My point was that, while the bill is incredibly flawed and can be overreaching, SOPA does have the potential to help stop the spread of pirated content."



And this attitude is part of the reason we took you to task. SOPA does not have the potential to help stop the spread of pirated content. It actually does very little - shut off advertising? Take down DNS? That won't stop anything in the short term or long term.



Shut down extra-US sites on a US court order? Unlikely, when the EU Parliament has passed a resolution condemning SOPA.



Take down the actual site hosting the pirated content? Sure, that does something (though it's flawed and overreaching). It also isn't part of SOPA - it's part of the DMCA, and it's been law for years.



There's no issue of balancing at stake here. SOPA fails to do what its proponents claim it does, it fails to do it in a dangerous way, and those backing it are refusing to listen to any criticism. When you publish editorials that say "well, it does work, at least a little" you reinforce that stubborn attitude. And when you write an article about why an organization is backing it with no comment from the organization backing it, that's shoddy journalism.



If you want to give us some insight into why the ESA is supporting it, get a comment from the ESA. Get comments from member organizations.

Bart Stewart
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Kris (and Chris), you guys must be doing something right if Joe can fault your journalism for a single sentence pointing out the positive purpose of SOPA and I can ding you for not saying more about that!

Joe Wreschnig
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On the contrary, if he said more - like any kind of facts or justification - I'd be much happier. He'd still be wrong, but it wouldn't be garbage, just wrong.



Though if there's a game-centric defense of SOPA anywhere on the Internet I've yet to find it.

August Junkala
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Aren't cockroaches pretty resistant to nukes?

Michael Herring
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If "the point of the story was the ESA sees this as a tool to help it defend publishers," then you should have presented an ESA analysis or quote that shows how SOPA would actually help.



If "[your] point was that...SOPA does have the potential to help stop the spread of pirated content," you should have addressed the numerous cogent arguments already out there that show how SOPA's provisions will *not* work, and are easy to work around in short order.



The issue is not that you defended SOPA. The issue is that you're publishing assertions that have no supporting evidence. The article contains neither quotes nor analysis supporting this assertion.

Ian Williams
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SOPA is evil

William Barnes
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Sadly, Most politicians are uneducated, and thus ignorant (due to that lack of education) of what does and doesn't work. Especially in the US where they rely on insider (as in members of the "severely" harmed industries, whose claimed damages are rarely scrutinized for any solid evidence of truth that the damages are as severe as claimed) for the, to use an analogy, Cannon to kill a Mosquito, suggestions that in reality never really work right and just make things more complicated.



"protect the interests of the video game industry and its publishers. And SOPA, at its core, is a bill that will help do that."

Yupp, that's the Job of the ESA, as while the exact name of the industry changes, is the job of the BSA, RIAA, and MPAA. It seems in reality though, the motives are to support and and enforce a dead, or dying business model and place any and all creativity/distribution under their respective thumbs.



SOPA assumes the guilt of practically anyone, and allows for DNS denials/redirects on just the suspicion of violations, without warning. SOPA actually even threatens Gamasutra and every other website that exists, even if said website scrutinizes everything that is submitted as a comment, or otherwise. Human error could let one thing slip through, and when someone complains, the site is gone until the bureaucratic process of legal ransacking is complete to their satisfaction (i.e. they can't find a trace of evidence buried anywhere.)



Gamasutra, be aware of how if this passes, the extra work that will be involved to moderate anything and everything that makes it on this site, and if missed, could still get you shut-down.



SOPA IS evil. It is a waste of taxpayer dollars in many-many ways, and for those bent on it, will do nothing to pirates, but probably will do irreversible damages to the "nobodies" and small fish of the Internet.

Titi Naburu
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Chris is right, some ESA members really believe that the SOPA will do good for them, so they support it. That's what happens where there are organizations too powerful: they can act against their customers and get unaffected.

Vitor Menezes
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While I can buy that the ESA believes SOPA will help slow or prevent piracy, that the bill actually deters piracy isn't really true; torrent trackers and the like will simply revert to primarily using IP addresses directly instead of domain names, thus ensuring that the bill is only a real threat to "legitimate" websites. Whatever effect SOPA has on piracy, there's no reason to expect it will be anything but brief (as pirate sites find workarounds to relying on domain names), and not without massive collateral damage.



To use the nuke analogy: it's using a nuke to kill a cockroach, but the cockroach survives and loses only an antenna and maybe a leg. Meanwhile, the rest of the city has been leveled, the dirt glassed, and the entire area inaccessible without radiation protection for 50+ years.


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