Image by Aldon via Flickr
There has been lots of great analysis of the Stop Online Piracy Act (SOPA) and the potential side effects its enactment would have for Internet providers and content distributors. But the dramatic showdown yesterday has larger implications for brands and intellectual property owners. The balance of power has shifted from traditional lobbyists to social media activists, from IP creators to users and from brands to their consumers. The odd fact is that, with a few exceptions, this should be a good thing for brands.
BACKGROUND
SOPA was stopped dead in its tracks yesterday by a concerted and coordinated online effort. This included a blackout across significant portions of the Worldwide Web, with Wikipedia going dark and Google blackening its logo. Several sponsors of the bill including Florida Republican Senator Marco Rubio have now withdrawn their support.
According to Declan McCullagh at CNET:
SOPA is designed to respond to the rise of offshore Web sites, sometimes called "rogue" Web sites, that distribute pirated movies, songs, and other copyrighted material. It allows the attorney general to seek a court order against the targeted Web site that would, in turn, be served on Internet providers in an effort to make the target virtually disappear.
The reason for the widespread opposition to SOPA is that, as Forbes contributor Larry Magid writes:
It would be a bit like requiring the manager of a flea market to shut down the entire market because some of the merchants were selling counterfeit goods
It is now very clear – if it was not already after the Arab Spring – that social media has become a powerful political force. Traditional lobbyists were behind the drafting of SOPA (including former Connecticut Senator Chris Dodd who was made chairman of the Motion Picture Association of America to wield just this kind of influence.) The bill, accompanied by its U.S. Senate counterpart “Protect Intellectual Property Act” PIPA were somewhat obscure pieces of legislation and seemed destined to pass until a grassroots online movement, spearheaded in places like Reddit.com, arose to challenge it.
ORIGINS OF THE DEBATE: WAS NAPSTER BAD OR JUST MISUNDERSTOOD?
Most of the online commentary has discussed whether the bill would have had unintended and onerous side effects. But the more interesting question is how brands should navigate in a world where power has shifted? Consumer brands want to protect their intellectual property while simultaneously getting consumers to promote it as much as possible.
The MPAA may hate a foreign web operator posting an entire feature film for illegal download but they’d love the same operator posting the official trailer for the same film along with a favorable review. So the real question is one of degree. The moral and legal dimensions of controlling intellectual property have been well explored in the past weeks leading up to the protest yesterday, but the practical dimension has been largely overlooked. Is it actually profitable to closely guard intellectual property?
On it’s face, the answer would seem to be a resounding ‘YES’! Every illegal download of a Maroon 5 song or an Angelina Jolie film takes money away from the artist, the studio, the producer and the distributor. But not every song or movie has the success of “Moves Like Jagger” or “The Tourist.” For most brands most of the time, the issue is relevance.
When Napster was shut down, the legal argument was straightforward. Mr. Fanning’s (as well as Mr. Parker's) creation was being used to illegally copy popular songs in large numbers. This was true, and it’s hard to argue that the American Top 40 needed any free distribution. But a side effect of Napster was to allow music aficionados with lots of time to sort through a huge amount of intellectual property and promote the songs and artists they thought were worthy. Napster was complex enough to use to limit it to a specific segment of the population – one that was unlikely to pay for the music in any case. While the labels were right to want Napster to stop distributing the top of their playlists, they were dead wrong – from an economic standpoint – to shut it down entirely.
The smarter move for the music studios would have been to allow Napster free access to the 95% of songs not at the top of the charts, in return for writing reviews and promoting good songs. In fact, this is what made MySpace so successful. It was driven primarily by bands and artists desperate to share their own IP freely to build their brands. That’s where most of IP falls economically: sharing by a minority population as long as it involves engagement will help brands.
LESSONS FOR BRANDS
Our fanpage wasn't started by an employee at our headquarters in Atlanta. Instead, it was launched by two consumers in Los Angeles as an authentic expression of how they felt about Coca-Cola. A decade ago, a company like ours would have sent a "cease and desist" letter from our lawyer. Instead, we've partnered with them to create new content, and our Facebook page is growing by about 100,000 fans every week.
- Joe Tripodi, CMO The Coca Cola Company for Harvard Business Review [emphasis added]
For brand marketers, not every piece of IP is Avatar. Not every bit of our words, images and music can be sold directly. But each part that is valued and promoted by consumers contributes to the value of our brands. While there is no question that allowing consumers to download a popular movie without compensation is unfair, the same might not be said for an unpopular film. The question gets more complex when consumers change or interact with our brands or images – from Coca-Cola and Mentos to avant-garde interpretations of Barbie. Our instincts (and our corporate counsel’s advice) may be to protect IP first and ask questions later. But these interactions show engagement and even if they don’t fit our view of our brands, they may add vitality to old or dormant brands, increasing the underlying value of our business.
Here are five tips for engaging with consumers in the post-SOPA world:
- Stop thinking of your creative work as property. Think of it as permission. – Permission to engage, permission to show interest, permission to promote.
- Work with your customers rather than suing them – there aren’t very many successful business models that involve suing your customers, particularly in a world where the mainstream media is attuned to social media.
- Keep moving – Creating lots of great new creative is the best way to generate attention, interest and new streams of revenue.
- Rethink your business model – Indie bands learned quickly that that they couldn’t make money by recording, so they distributed their songs freely to build an audience for touring. If using your brand IP has become widespread consumer behavior it may be smarter to try to harness the activity than fight it.
- Be generous. Be tolerant. – As Coca-Cola discovered, a more tolerant attitude towards consumers interacting with your IP can yield unexpected benefits.
The struggle between free expression and protection of intellectual property will continue, but the balance of power has shifted. Rather than fighting it, brands ought to look for the benefits of a world where consumers engage more often and more deeply with their creative output.
