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January 19, 2012

SOPA and PIPA: Where we are. What they want.
Posted by Patrick at 11:28 AM * 69 comments

SOPA, PIPA, and other laws and proposed laws like them claim to be about “piracy,” but don’t be fooled. Smart people have repeatedly debunked the idea that “piracy” is anything like the threat that Big Content says it is, and that its costs to the economy are anything like the gargantuan sums routinely claimed. The entertainment and publishing conglomerates pushing these bills have developed a practiced set of techniques with which to terrify legislators into believing that IP “piracy” costs the US eleventy-jillion dollars a year and LOST JOBS JOBS JOBS. If this comes as news to you, get out more.

While I’m at it, the controversy over these bills isn’t a war between the “content industry” and the “tech industry,” either, despite the mainstream media’s fondness for this simplistic narrative, and the surprising weakness even some very smart people have for it. The MPAA and RIAA would love to see everybody frame these issues as nothing more than a spat between “industries.” But the tens of thousands of writers, artists, musicians, and filmmakers who spoke out yesterday against SOPA and PIPA aren’t the “tech industry.” They’re creators—actual content creators—who know perfectly well that censorship is a greater threat to their livelihood than piracy, and that a world with a crippled internet and a no-appeals, guilty-until-proven-innocent copyright-enforcement regime would be a world in which they would be unable to do their work and survive.

So where are we this morning? An increasing number of members of Congress say they can’t support the bills in their current form, and the White House has said that Obama won’t sign them as presently consituted. Good news, right? Well, better than being punched in the face. But hardcore supporters and sponsors like Lamar Smith and Patrick Leahy (and Chuck Schumer and Kirsten Gillibrand) insist that all these little technical problems will be ironed out and that once we have versions of the bills that address everyone’s complaints we’ll be moving them briskly along to passage.

Here’s Ars Technica: Even without DNS provisions, SOPA and PIPA remain fatally flawed.

Both PIPA and SOPA feature inadequate judicial oversight, allowing injunctions to be granted after a single, one-sided court hearing. Both give the power to seek injunctions not only to the attorney general but also to private copyright holders. […] Both bills allow the attorney general (and, in some cases, private parties—more on that later) to request a takedown of an overseas site based on the legal fiction that the website, rather than its owner, is the defendant. Because a website owner isn’t technically a party to the case, the judge can issue an injunction before he has even heard the defendant’s side of the case. And the attorney general can have the target website cut off from access to search engines, advertising networks, and credit card payments.

Website owners can intervene to overturn an injunction, but the bill envisions this adversarial process happening after the injunction has been issued and the site has already been removed from search engines and had its funding cut off.

To see how this can burden free speech, we need only look at the case of rojadirecta, which was seized by the government last year. The Spanish sports site has been declared legal under Spanish law, but it has taken the site months to get a hearing in an American court. Whether or not the seizure of rojadirecta is declared legal or not, the site should have had its day in court before it lost its domain. SOPA and PIPA would make this problem worse by extending similar procedures to ad networks, payment networks, and search engines.

That’s just one of the features of these bills. Here’s another:
Any “qualifying plaintiff,” defined as anyone with standing to bring a copyright lawsuit against the target site, would have access to the same one-sided process to seek an injunction. And it could take that injunction to ad networks and payment processors to cut off the flow of funds to the target site. And all of this could happen before the target site had the chance to give its own side, to say nothing of appealing the judge’s decision.

This is important because major content producers don’t have a great record of restraint when it comes to exercising takedown powers. Last month we covered UMG’s claim that it has the power to take down YouTube videos it doesn’t own. And the month before that, Warner Brothers admitted that it had sent automated takedowns under the DMCA against content it didn’t own and that no Warner employee even looked at.

Neither SOPA nor PIPA have any penalties for copyright holders who abuse their new powers. The Digital Millennium Copyright Act provides for penalties (albeit fairly toothless ones) against copyright holders who abuse the powers provided by its notice-and-takedown rules. In contrast, websites targeted by bogus SOPA or PIPA injunctions would have no recourse.

Even with their most notorious bits removed, SOPA and PIPA would still be catastrophes, because at their core what they are about is dispensing with due process. As Clay Shirky points out in his excellent fourteen-minute talk recorded just before yesterday’s events, for the people pushing this stuff, that’s not a bug, it’s the essential feature. What they want is a private, global regime of censorship and prior restraint in which governments target whoever the big private copyright-holders tell them to target, free of any fussy nonsense about trials, hearings, or the rights of the accused.

Big Content got big and successful for a combination of reasons. Some of it was talent, skill, and creative brilliance—and some of it was cannily identifying the choke points implicit in distribution systems based more in atoms than in bits, and setting up toll booths on the those choke points. Now the choke points are changing, and bits behave differently from atoms. The old players are faced with a choice: do we find new ways to do business, or do we try to beat the world back into a shape in which our old ways still work? What all too many of them seem to be choosing is plan B: permanent war against the human race.

Comments on SOPA and PIPA: Where we are. What they want.:
#1 ::: Adam Lipkin ::: (view all by) ::: January 19, 2012, 11:43 AM:

(Please delete this comment as needed)

Minor URL breakage alert: A gratuitous "v" (which happens often enough when I type quickly, too) at the beginning of the "Very Smart People" url.

#3 ::: Jacque ::: (view all by) ::: January 19, 2012, 11:54 AM:

Well, one small victory: of my district's three congress members, the one who supported internet censorship seems to be backing off.

#4 ::: Kathryn Cramer ::: (view all by) ::: January 19, 2012, 11:55 AM:

I wrote to Bill Owens yesterday and got a reply this morning which I found quite creepy: his defense of his co-sponsorship he uses the word "foreign" six times, four of them preceding the word "rogue." Underlying his rhetoric is the notion of keeping the American Internet American and stopping foreign rogues at the border: bizarre and xenophobic.

#5 ::: Xopher HalfTongue ::: (view all by) ::: January 19, 2012, 11:57 AM:

As I said yesterday on FB, these bills are like the serial killer in a slasher movie: never quite as dead as you think, and there's always room for a sequel.

#6 ::: Tim Hall ::: (view all by) ::: January 19, 2012, 12:05 PM:

I spent a lot of time this morning discussing SOPA on Twitter with the owner of a small independent record label based in Spain, who's still convinced that piracy is a threat to his business. I've come up against a few independent musicians who feel the same (Although a lot more musicians agree with your line that piracy is overstated).

What should I say to them?

#7 ::: Rob Thornton ::: (view all by) ::: January 19, 2012, 12:33 PM:


Here's what I might say to that label owner: I've always figured that all the "piracy-crushing" tools that SOPA/PIPA will create will be too complex and too expensive for the individual label owner/small press to use. Thus they can crow about "stopping piracy" while keeping the small fry in their place.

The RIAA and the MPAA have every reason to crush all the other small creative businesses now--the Internet can actually make money for them if they know how to do it (Louis C.K. being the most recent and most obvious example).

Your pal from Spain should not *ever* think that the Big Guys are looking out for anyone but themselves, especially in this digital world.


#8 ::: Adam Lipkin ::: (view all by) ::: January 19, 2012, 12:38 PM:

Tim, acknowledge that it's true at a small level (yes, piracy is a threat, and no one on this side of the fence really wants to see it continue), but point to A) the numbers that show how relatively small the impact is, and B) the fact that the protests are not over an anti-piracy bill, but a bill that wants to throw out any number of babies along with the bathwater.

#9 ::: Xopher HalfTongue ::: (view all by) ::: January 19, 2012, 12:39 PM:

I'm not sure whether SOPA Author Lamar Smith's Copyright Violation goes under "But SOPA Only Applies To People We Want To Crush" or under "Republicans Assume They Own Everything."

#10 ::: Tim Hall ::: (view all by) ::: January 19, 2012, 12:44 PM:

Lots of people point at declining record sales, and immediately assume piracy is to blame. I know the position is more complex than that. Fragmentation of the market with loss of market share for the majors, and they fact that people cherry-pick albums for the good songs rather than buy albums that are mostly filler probably hurt Big Content's bottom line far more than piracy.

But sometimes it's hard to convince people of that.

#11 ::: Rob Thornton ::: (view all by) ::: January 19, 2012, 12:51 PM:

Another thought: are we using the right tools to measure the success or failure of a musical act? From what I have seen, the troubadour model (live performance as revenue generator) is becoming more popular so sales alone cannot signify success or failure these days.

#12 ::: Rick Owens ::: (view all by) ::: January 19, 2012, 12:54 PM:

Tim Hall @6:

One suggestion: tell your friend that if he suspects someone is hurting his business, there's a simple fix under this wonderful new proposed law!

Step 1, make a list. The first entry on the list is the person who is threatening your friend's business. The rest of the entries are the people who enable the 1st suspect to be a threat.

Step 2, torch the businesses belonging to everyone on the list from step 1.

Problem solved! Oh, by the way, everyone else can do the same thing... but it's not a problem if you never do anything wrong, and never give anyone a real or imagined reason to think you've done something wrong. So it's cool, right? And so much more efficient! (Adjust sarcasm level to taste.)

That sort of a 'fix' is obviously insane when applied offline. Online it's just as insane, but not as obvious to many people. Yes, piracy and fraud are problems that need to be dealt with, but you can ask your friend if removing freedoms and protections for everyone is the right way to go....

#13 ::: Constance ::: (view all by) ::: January 19, 2012, 01:10 PM:

Jon Stewart did a good job on congress and SOPA / PIPA. This link takes one to a salondotcom piece that has the video.

He made it so clear that none of these people making rules and laws and regs have a clue as to what anything is on the internet or how it works.

Or how it is now as almost as enmeshed in every aspect of our lives as is petroleum. But they aren't interested in regulating petroleum. Stewart didn't say any of this part, by the way. This part is just me.

There's a Hunter Daily Kos essay last night about Hollywood and their sock puppet, Chris Dodd and SOPA, that breaks it down in a detailed manner, though the tone is of utter outrage-rant, i.e. -- I quote -- ".... under the This is So Stupid It Deserves Constant Mention rule."

#14 ::: Nicole J. LeBoeuf-Little ::: (view all by) ::: January 19, 2012, 01:54 PM:

From the article linked by Jacque @ 3:

Rep. Jared Polis, a Boulder Democrat and an Internet entrepreneur, has been a leading opponent of the measure. In protest, Polis entered the lyrics of "The Internet Is for Porn" into the Congressional Record in December.

Have I publicly *hearted* Rep. Jared Polis enough yet? NO AMOUNT OF HEARTING CAN EVER BE ENOUGH.

Apparently I missed that Senator Bennet was someone else I ought to be writing, because he was listed below the fold in the little window that the EFF gave me after I entered my zip-code here. I just didn't notice the scroll-bar. I also didn't stop to think "Huh, don't all states have 2 senators?" Well. I'm glad Bennet is getting the message even without my help. Heh.

Oh - unrelated to Internet censorship, but pertinent at the crossroads of "The Internet is for Porn" and "Boulder, Colorado" - The Boulder Dinner Theater will be performing Avenue Q starting in September. Awesome (Y/Y)?

#15 ::: Tim Hall ::: (view all by) ::: January 19, 2012, 02:07 PM:

Rick Owens #12

I don't know what the situation is in Spain, but their are certainly suggestions that *something* has cratered the entire record industry in that country. I suspect spiralling youth unemployment may have something to do with it. People are not going to pay for music if they don't have the money to pay for it.

If you do Twitter, it's worth looking at the conversations between me (@Kalyr) and @SeanAtBlanco over the past 48 hours.

On the other hand, I get the impression that @Helienne and @Dorianlynskey have gone over to the dark side on this.

#16 ::: Nicholas Whyte ::: (view all by) ::: January 19, 2012, 03:25 PM:

And Megaupload just got closed down - so why do they need SOPA anyway!

#17 ::: Rick York ::: (view all by) ::: January 19, 2012, 04:02 PM:

I cannot recommend strongly enough Cory Doctorow's talk to the 28th Chaos Communications Congress in Berlin over Christmas week, "The Coming War on General Purpose Computation".

One need not agree with Cory's constant battle against virtually all forms of copyright to find this speech fascinating. It is an hour well spent. It really ought to be compulsory for anyone who spends any serious time on the intertubes. Please take time from your very busy schedules to listen and/or watch it.

#18 ::: Leah Miller ::: (view all by) ::: January 19, 2012, 04:32 PM:

I spend a lot of money on music, more than most people my age I know. Here is how I figured out where to spend all that money:

Of the three bands I have given the most money to, I was introduced to one of them by legal sharing with some light piracy, one of them by piracy (or more specifically: DOUBLE PIRACY), and one released all his music free on the internet for a long time.

Those bands are, in order, They Might Be Giants, The Magnetic Fields, and Jonathan Coulton.

I hadn't heard of They Might Be Giants until I went to college. A few friends of mine simultaneously tried to get me to like them, with loaned CDs and cassettes and eventually I think a mix tape (I qualify mix tapes as 'light piracy,'). Since then I've bought 80% of the albums they release at full retail, and gone to see them in concert 5-6 times.

The second band is the Magnetic Fields. I discovered them because my friend had a single song of theirs on a mix tape (piracy!) given to her by a long-forgotten beau. We only even knew their name because of the hastily penned label. Then came Napster, and one of the things we did first was look up the bands that wrote her top three favorite mix tape mystery songs. We found tons of Magnetic Fields songs, and downloaded them all (double piracy!). For a while, their first two or three albums were out of print, and their back catalogue couldn't be found in stores - this was pre-amazon. Then they released a new album... a triple album called "69 Love Songs." We both ran to the record store to get it. I actually had to wait for them to order a second copy: they had only ordered one in, this was not a popular or well-known band. That was the first time I can remember walking into a store and plonking down more than $20 for a piece of music, but I never looked back. I honestly think that the internet caused a lot of their old albums to go back into print, and I now own a copy of every full-length album they've released, all because of Napster. I'd say it's almost certain that, without Napster, I would never have spent a single dollar on that band.

Finally, there's Jonathan Coulton, who released all his albums Creative Commons, excepting the covers he occasionally does. I've seen him in concert several times. I attend conventions that pay him to put on concerts. I've bought a few of his albums, and my brother has bought nearly all of them. I've been on the cruise he sells to his fans.

Coulton gets more from me for that cruise, most likely, than most musicians get from a single person ever, even in the days of albums. I wonder if Coulton's "concerts and downloads and cruises and video game tie-ins" revenue is counted in the Recording Industry's columns. Probably not, since he does all this independently rather than through a big label.

In a more broad light, I'd say that creative entertainment is the #1 thing I spend my disposable income on. Some of this is video games, yeah, but a lot of it is live comedy, live music, live theater, and a lot of live things that probably don't get figured into the big guys' balance sheets. And why am I spending $30 to go see a comedian's live show rather than spending $20 to see a movie in the theater? Well, because most movies nowadays aren't great, the food in movie theaters is horrifying chemical goo, and it's just not as much fun.

I will add one addendum: I was unemployed for a year recently, and while I did some freelancing, I mostly didn't have any money for luxuries or entertainment. During that period of time, my consumption of things that cost money went down to nearly nothing and my consumption of things that were free shot up into the stratosphere. I started listening to podcasts rather than buying albums or audiobooks.

So I guess I'd conclude two things from the single person anecdote farm that is me:

Piracy and sharing likely increases recognition and revenue for more obscure artists.

Decreased disposable income for the lower and middle classes may well account for the slump in entertainment revenues.

#19 ::: Mary Aileen ::: (view all by) ::: January 19, 2012, 05:56 PM:

Leah Miller (18): Decreased disposable income for the lower and middle classes may well account for the slump in entertainment revenues.

Relatedly, it is well known* that library use increases in hard economic times. Right when library budgets are being cut because tax revenues are down.

Note: libraries *buy* books. For many years, libraries were the mainstay of hardcover sales of midlist books. And public libraries in particular are one of the major ways people find out about new authors they might like--leading to more book sales.

*at least in the library community

#20 ::: reynard61 ::: (view all by) ::: January 19, 2012, 05:56 PM:

"I'm not sure whether SOPA Author Lamar Smith's Copyright Violation goes under 'But SOPA Only Applies To People We Want To Crush' or under 'Republicans Assume They Own Everything.'"

How about "Both".

#21 ::: Xopher HalfTongue ::: (view all by) ::: January 19, 2012, 06:41 PM:

Yes, cross-referencing sounds like a good idea.

#22 ::: Mycroft W ::: (view all by) ::: January 19, 2012, 08:43 PM:

Tim Hall @ 6: here's another thing that maybe wasn't clear (Rick Owens @ 12 puts it out there, but maybe not obviously):

The rights of the Content Owners under these laws are such that *any of them*, *any time*, for *any reason*, can get *anybody's site* disappeared (or remove all ads and payment options), simply by asserting that somewhere on that site is something they own - or something on that site is owned by someone else, who hasn't given permission.

And *now* starts the clock of "try to prove that they're wrong, through the courts, with your assets effectively frozen." And the people what did the pulling can and will use every delaying trick in the book to not get to the point where the courts say "in this case, the takedown request was for no valid reason." The wheels of justice grind slow, indeed.

So, Senor small music publisher, how many times can your online site and sales channel go down for a year at a time before you go out of business? Never mind the cost of prosecuting the takedown order?

Note: he could be not wrong with his assertion that piracy is a threat to his business; but he can be squashed like a bug by the people who think that any music business they don't control is a threat to *their* business, by accident even, if SOPA comes into play.

#23 ::: Nicole J. LeBoeuf-Little ::: (view all by) ::: January 19, 2012, 08:43 PM:

Mary Aileen @19 - Note: libraries *buy* books.

"You mean they're not born there?"

Seriously, a lot of people seem not to get this. Every once in a while someone goes on a sort of popular Editorial Raeg about used book sales and library operations killing authors' ability to make a living. I'm not sure whether they don't understand that every one of those used and borrowed books does in fact represent a sale with royalties and everything, or if they honestly believe the one-book-equals-one-sale commerce model is broken.

This could be related to the thinking behind HarperCollins limiting ebooks to 26 library loans before the license self-destructs. I'm not sure.

#24 ::: Patrick Nielsen Hayden ::: (view all by) ::: January 19, 2012, 10:40 PM:

Rick York #17: I agree about Cory's talk. I disagree that Cory is opposed to "virtually all forms of copyright." Cory makes his living off of copyrights, just as I do; if he's at war with anything, it's the caricature that copyright has become. The original devisers of modern copyright would have been boggled to see what it's become--the basis of permanent income streams for immortal estates and corporations, and a tool for shaking down individuals who engage in the same kind of sharing behavior that humans have engaged in since the Stone Age.

Cory is also a huge booster of Creative Commons, which is utterly predicated on the existence of copyright; it's completely dysfunctional without it.

#25 ::: pedantic peasant ::: (view all by) ::: January 20, 2012, 12:53 AM:

Xopher @ 5:

Xopher, that's brilliant!

Can I have your permission to recast that as a commentary on grammatical errors, to go on a poster in a high school English classroom?

#26 ::: Matthew Ernest ::: (view all by) ::: January 20, 2012, 01:01 AM:

'Rep. Jared Polis, a Boulder Democrat and an Internet entrepreneur, has been a leading opponent of the measure. In protest, Polis entered the lyrics of "The Internet Is for Porn" into the Congressional Record in December.'

In the event of SOPA-calypse, I wonder if the Avenue Q guys would be willing to pursue remedies against the Congressional Record.

#27 ::: Don Fitch ::: (view all by) ::: January 20, 2012, 01:02 AM:

I don't understand this bit about IP piracy costing "the economy" money. The people who download this stuff and get it free presumably have a certain amount of disposable income, and assuming that they're like all of the people I know personally, they're simply going to spend just about all of that money on other things, so it's still going into The Economy. (And I'd estimate that most of it will still be spent in the category of Entertainment, so there's not even much shift in the balance, though a bit less may be going to The Big Players.)

I do note a disturbing trend to do away with "due process" -- not just in this law, but (even worse) in the sphere of the Terrorist hysteria.

#28 ::: Xopher HalfTongue ::: (view all by) ::: January 20, 2012, 01:21 AM:

pedantic, sure. Not quite sure how you'd do that, but I have no objection.

#29 ::: Teresa Nielsen Hayden ::: (view all by) ::: January 20, 2012, 04:06 AM:

Don Fitch, I've been assuming for some time now that when an entity wants to exercise the power of the law but dispense with due process, it's because they know a jury or judge won't always agree that what they plan to do is reasonable or appropriate.

#30 ::: Jules ::: (view all by) ::: January 20, 2012, 04:21 AM:

Don Fitch @27: while I do recall reading an excellent article that I think was linked from here recently which debunked precisely that notion, note that if not spent on copyright-protected entertainment (whereby almost all of the money would typically stay in the US economy) the next most likely destination of disposable income is probably luxury goods or consumer electronics, most of which are imported. The argument is therefore not quite as broken as it's tempting to think it is.

#31 ::: Ingvar M ::: (view all by) ::: January 20, 2012, 06:42 AM:

Mycroft W @ #22:

I think it's even worse, I think it is "somewhere on your site is a link to something someone else owns, or a link to a link to something someone else owns or or is possible to find circumventions advice on (or links to, or...)."

That would be the death of all user-generated content, it'd simply be too risky.

#32 ::: C. Wingate ::: (view all by) ::: January 20, 2012, 11:32 AM:

re 23: It's seemed to me that the business model the Big Media are pushing is "you own nothing; you rent everything." The benefit to their revenue stream (and especially the security of that stream: "guaranteed money-maker" is a magic phrase in finance) The tendency to push everything into streaming feeds helps this as long as they can keep things from being copied off permanently at the receiving end, so I can imagine some misguided legislation being attempted to prohibit that.

The benefits for censorship are also as obvious, but we'll pretend that wouldn't happen.

#33 ::: TexAnne ::: (view all by) ::: January 20, 2012, 11:42 AM:

Ingvar, 31: For Big Content, the death of user-generated content is a feature. We're their competition.

#34 ::: Jenny Islander ::: (view all by) ::: January 20, 2012, 11:48 AM:

@Mary Eileen, no. 19: But why should those lazy poor people have someplace to go for free? They should get better jobs and buy the books they want to read. Internet access for the jobless--psssshhhh. If they were not so lazy, they would already HAVE computers at home. And only leeches check out DVDs instead of putting money back into the economy via cable and Netflix.

Yes, I am quite sure that somebody behind the cuts to library funding has actually said that out loud. Possibly verbatim.

#35 ::: Bruce Cohen (Speaker To Managers) ::: (view all by) ::: January 20, 2012, 12:20 PM:

The recent development in this area that I'm most concerned about is that the Department of Homeland Security has become extremely active in enforcing copyright on the web, to the extent of seizing domain names (without any real due process, of course).
I've yet to hear a justification of DHS' involvement in copyright enforcement that makes any sense. My paranoia tells me that they're using the excuse of copyright violation to test methods of control and censorship of the internet in anticipation of a major action against dissent in the US and possibly elsewhere.

#36 ::: pedantic peasant ::: (view all by) ::: January 20, 2012, 01:16 PM:


Thank you.

#37 ::: Constance ::: (view all by) ::: January 20, 2012, 01:39 PM:

And now this:

Wednesday the Supreme Court handed down a decision that allows works in the public domain to be re-copyrighted.

Love, C.

#38 ::: Constance ::: (view all by) ::: January 20, 2012, 01:42 PM:

Here's the place that tips one off to this:

Why hasn't the msm mentioned this at all -- or have I missed it because of no television, and due to this weekend's performances, el V at home practicing vocals during my time of listening to the radio. But I didn't see it mentioned in the NYT or the WaPo or even on salondotcom.

Or am I misunderstanding everything and there's nothing to see here and should just move along?

Love, C.

#39 ::: Elliott Mason ::: (view all by) ::: January 20, 2012, 02:09 PM:

Constance @37: IANAL in any way, shape, or form (and I don't even play one on TV), but reading through the first two pages of that PDF implies to me that this isn't Congress 're-copyrighting,' it is Congress being forced into compliance with international regulations that said these things were never public domain to start with ... Namely, works by foreign authors who had not intentionally published their works in the US (which would have gotten then reciprocal protection) or a few other loopholes.

It does massively suck for classical musicians and the like, but it's nowhere near as bad as some things that could have come out under the same headline (say, a Mouse-grab retroactively putting a bunch of pre-1922 US-made stuff back under protection. Or 'Protection,' as in, "Nice derivative work you had there. Shame if anything were to HAPPEN to it ...")

#40 ::: geekosaur ::: (view all by) ::: January 20, 2012, 02:31 PM:

That's my understanding as well, that it's implementing part of the requirements for the US to be a signatory to the Berne Convention, which is in general a Good Thing but has some unfortunate side effects with respect to stuff that was never copyrighted in the US.

#41 ::: Caroline ::: (view all by) ::: January 20, 2012, 02:38 PM:

I watched some of the GOP debate last night, and was fascinated to notice that three out of the four remaining candidates railed against SOPA as a threat to freedom (Santorum was the odd one out, rambling about how important copyright was -- he got booed for that).

As I said to Keith, "Awww, look at them acting like they have principles! It's adorable!"

Cynicism aside, I take it as a relatively good sign that even the GOP presidential candidates seem to have figured out just how unpopular SOPA/PIPA are. It isn't the sort of thing I'd expect any of them to be against on principle (except Paul); most of them never met a tool for censorship or a tool for privileging big business they didn't like. (Insert Romney joke here.) But the outpouring of opposition during the blackout seems to have gotten their attention.

(Even if Newt Gingrich did start his answer by saying he wasn't going to support anything to defend Hollywood and all its lovely left-wing people. Okay, maybe cynicism wasn't totally aside there.)

#42 ::: C. Wingate ::: (view all by) ::: January 20, 2012, 04:03 PM:

re 35: On one level the consolidation of all police-ish functions into a single department makes some sort of organizational sense. The problem is that the conditions under which DHS was created has meant the implicit escalation of every federal offense into A Matter Of National Security, with every "don't you know there's a war on?" suspension of liberties and process invited by that kind of fake air of crisis.

#43 ::: C. Wingate ::: (view all by) ::: January 20, 2012, 04:18 PM:

re 37/39: It seems ex post facto to me, but what do I know.

However, I think it is safe to say that Breyer's dissent is probably the only juxtaposition of Star Trek and the Venerable Bede in the annals of law.

#44 ::: giltay ::: (view all by) ::: January 20, 2012, 04:20 PM:

Jenny Islander @ 34: It's funny you should mention. The Toronto budget chief said some remarkably similar things just two months ago to justify major cuts to the Toronto Public Library system.

I nearly Hulked out.

#45 ::: Kip W ::: (view all by) ::: January 20, 2012, 04:38 PM:

I keep expecting to hear that Disney has bought the Public Domain.

#46 ::: Lenny Bailes ::: (view all by) ::: January 20, 2012, 07:47 PM:

FWIW, this link has the complete text of the legal complaint filed by the U.S.A against Megaupload. (Megaupload is reportedly disputing paragraphs 24 and 25.)

What's interesting to me about the Megaupload takedown is that it shows the U.S. as capable of taking action against perceived Internet piracy without any additional legislation. I don't know whether the complaint against Megaupload will hold up in court. It looks pretty reasonable if all of the stipulated allegations true. There's no doubt about Megaupload having been a hotbed for illegal filesharing. I've read that their attorneys are contesting, at least, paragraphs 24 and 25 of the complaint. I've also read that at least one other "storage locker" website (Rapidshare) survived a DMCA takedown attempt and was declared to be legal in both Europe and the U.S.

It's not popular, in the current political climate of "must stop foreign thieves from stealing America's inventions and products," to have ambiguous feelings about current DMCA law. I'd still like to see more widespread debate about the effectiveness/necessity of DMCA. (Bless Cory for that. It's not at all proven that illegal sharing of copyrighted material really discourages people from going out and buying legal copies.)

But defeating SOPA/PIPA is a more immediate worry than debating about DMCA. If the current government case against Megaupload fails, that failure may reinforce Congressional fervor to pass some version of PIPA/SOPA.

I think that some members of Congress have been fooled into perceiving SOPA/PIPA as targeting only sites such as Megaupload. It's probably easier for them to live with accepting bribe money from Hollywood if they believe that what they're mostly doing is taking a strong stand against foreign piracy.

The Wednesday strike seems to have been successful in forcing some members of Congress to pay attention to the broader implications of PIPA/SOPA, including the implicit contempt in both bills for due process of law -- which Patrick hammered on in his posts on the subject.

I'm not sure whether the point has gotten across to Congress, yet, that the bills would have terrible consequences even *with* an expensive set of provisions for due process of law, warrants, trials, etc.

#47 ::: Lenny Bailes ::: (view all by) ::: January 20, 2012, 07:48 PM:

I'm gnomed at #46.

#48 ::: Tom Whitmore ::: (view all by) ::: January 20, 2012, 08:03 PM:

I thought Disney was dwarves, not gnomes (in response to Lenny getting gnomed after Kip W's comment at 45).

#49 ::: John Mark Ockerbloom ::: (view all by) ::: January 20, 2012, 08:26 PM:

The thing to worry about the Supreme Court decision is not so much the ruling itself but the justification they gave for it.

In particular, even though Congress did this to satisfy treaty obligations, the majority opinion said Congress could take things out of the public domain for pretty much any reason they like. Previously, it's only been done in extraordinary circumstances, and there's been a general sentiment that what's in the public domain should stay in the public domain.

Which means that the same lobbyists who lined up behind SOPA and PIPA can not only pressure Congress to extend existing copyrights; they can pressure Congress to get copyrights *back* from the public domain. And since not as much of the public notices or cares about that as much as they care about net censorship, they could well succeed.

#50 ::: Kevin Marks ::: (view all by) ::: January 20, 2012, 09:22 PM:

Don and Teresa #27 and #29:
During a previous round of the many-year battle by Content Maximalists against 'this sort of thing', I compared 13th century and 21st century Barons' attitudes to due process.
Sadly, the 13th century looked good by comparison.

#51 ::: The Raven ::: (view all by) ::: January 20, 2012, 11:47 PM:

Ding dong SOPA and PIPA are dead! At least for the moment.

Summary at Talking Points Memo.

The Republican Presidential hopefuls are united against it.

And the Chinese internet weighs in. Someone who goes by Zhang has the best comment: “I’ve come up with a perfect solution: You can come to China to download all your pirated media, and we’ll go to America to discuss politically sensitive subjects.”

After this, we aren't a series of tubes anymore. Congress is going to take us seriously.

...perhaps that's not a good thing.

#52 ::: Xopher HalfTongue ::: (view all by) ::: January 21, 2012, 12:00 AM:

My rep, who was lukewarm on the bill when I wrote to him weeks ago, wrote to me to crow about "our" victory in putting it down.

#53 ::: The Raven ::: (view all by) ::: January 21, 2012, 12:06 AM:

Xopher, #52: croak!

#54 ::: Ken Brown ::: (view all by) ::: January 21, 2012, 06:40 AM:

Tim Hall @6: use a real-world analogy. (Well, a non-computery one)

Ask your Spanish friend to imagine this. The US proposes a law that allows any US company in dispute with a foreign company to order the US mail and all US-based privately-owned carriers to stop delivering packages to or from that foreign address.

So if an American lawyer working for, say, Walmart, alleged that a company - say a mail order company in Spain - had violated its trademarks or copyrights or committed any one of a number of naughty acts, then as soon as they served their complaint to the right people on the right paper form, no American could send or recieve any mail or parcels or packages or shipping containers to or from that Spanish address. No goods could be shipped from the Spanish company to the USA, no orders or payments sent from the US to Spain.

And they wouldn't even have to tell the Spanish what they had done or why - that information goes to the Americans involved.

And the only way to get the block taken away would be for the Spanish people to go to the USA and ask UPS or DHL or whichever shipper they used to tell them what had happened and who had ordered it, and then to sue Walmart in an American court.

#55 ::: Bruce Cohen (Speaker To Managers) ::: (view all by) ::: January 21, 2012, 11:14 AM:

I'm beginning to wonder if the emphasis on copyright at DHS is going to result in copyright violation being considered prima facie evidence of terrorist activity. Maybe they'll be able to convict Julian Assange of copyright infringement instead of espionage (or treason, as some of our more irate Congresscritters calling for his head don't seem to understand that the act of treason requires that you be a citizen or the country betrayed).

#56 ::: Mary Frances ::: (view all by) ::: January 21, 2012, 05:13 PM:

Xopher @52: Eh, let him crow. I'd take it. If he actually shows even minimal evidence of having listened to a constituent, he's doing what he's supposed to do--representing. My rep, on the other hand, doesn't seem to be aware that he has actual human beings living in his district. I think he believes that we're all cardboard cutouts or something . . . robots, maybe.

#57 ::: Constance ::: (view all by) ::: January 21, 2012, 06:07 PM:

#39 ::: Elliott Mason et al.

Thank you!

That's what ye caro spouso also said, a musician, composer and conductor, after he read the materials -- that the U.S. is being forced to come into compliance with the international Berne Convention in these matters. He wasn't upset by that -- unlike, of course SOPA, etc.

Love, C.

#58 ::: Henry Troup ::: (view all by) ::: January 22, 2012, 01:41 PM:

The Raven @51 - Zhang, btw, is the most common surname in China (which likely makes it the most common surname in the world.) Wikipedia quotes Guinness saying there are about 100 million people named Zhang. Makes a good pseud.

#59 ::: Tom Whitmore ::: (view all by) ::: January 22, 2012, 02:58 PM:

Propublica has been tracking SOPA/PIPA support in Congress. Apparently, on Jan 18th, the bills had 80 supporters and 31 opponents by their tracking criteria. On Jan 19th, the bills had 65 supporters and 101 opponents. Here's the link to their current page -- don't know how to dig up historical info.

#60 ::: David Harmon ::: (view all by) ::: January 22, 2012, 06:22 PM:

And here we see the flip side of the power balance: Anonymous retaliates for file-sharing site's shutdown.

#61 ::: Soon Lee ::: (view all by) ::: January 22, 2012, 09:07 PM:

Henry Troup #58:

I understand that Li/Lee has overtaken Zhang as the most common Chinese surname. Well, it's on Wikipedia so it must be true.

Re:Megaupload case.
The bail hearing continues.

#62 ::: Ken Brown ::: (view all by) ::: January 23, 2012, 09:20 AM:

I've thought that Li was the most common surname for years. No idea where I picked the idea up from but it was a long time before Wikipedia!

#63 ::: Constance ::: (view all by) ::: January 23, 2012, 04:25 PM:

Hollywood, via Dodd, threatens Dems -- going to withhold all the monies from them if they don't play on their team for their pay.

Discussion of this on salondotcom here.

But campaign contributions don't mean anything in terms of legislation. That's what I've always been told by the legislators, lobbyists, etc. and these are the truthiest of the truthy. They've told me that too.

Love, C.

#64 ::: David Harmon ::: (view all by) ::: January 23, 2012, 06:33 PM:

Constance #63: Great way to dig their own grave, there -- publicly threaten and humiliate the folks supporting them.

#65 ::: David Harmon ::: (view all by) ::: January 23, 2012, 06:46 PM:

Facebook et al tell Google "Don't be Evil".

Highlighting the "Google+" hardcoded regions in their searches....

Coalition's tool to take off the +Googgles....

#66 ::: Stefan Jones ::: (view all by) ::: January 27, 2012, 04:56 PM:

Oregon's Senator Merkley responds to me email:

I have heard from tens of thousands of Oregonians on this issue, and very much appreciate the outpouring of input on this issue. After carefully analyzing the legislation, which aims to provide new authority for U.S. officials to shut down foreign websites that offer counterfeit products, I decided last week to oppose SOPA and PIPA. Please click the image below to view a video explanation of my opposition to SOPA and PIPA.
#67 ::: Lenny Bailes ::: (view all by) ::: January 27, 2012, 05:11 PM:

FWIW, Al Franken (formerly a supporter of PIPA) sent the following to a Minneapolis constituent the day after the protest (reposted by permission). The subtext I get from Franken's response is that he's still spooked about the terrible threat to someone's way of life posed by online piracy.

Dear Karen,

As you may know, Senate Majority Leader Harry Reid has decided not to bring the PROTECT IP Act (the Senate’s version of SOPA) up for a vote next week. And since I’ve heard from many of you about this issue, I wanted to take a moment to share why I support copyright protection legislation – as well as why I believe holding off on this bill is the right thing to do.

As someone who has worked hard to protect net neutrality, I understand as well as anyone the importance of keeping the Internet free from undue corporate influence. There are millions of Americans who rely on a free and open Internet to learn, communicate with friends and family, and do business.

At the same time, there are millions of Americans whose livelihoods rely on strong protections for intellectual property: middle-class workers – most of them union workers – in all 50 states, thousands of them here in Minnesota, working in a variety of industries from film production to publishing to software development.

If we don’t protect our intellectual property, international criminals – as well as legitimate businesses like payment processors and ad networks – will continue to profit dishonestly from the work these Americans are doing every day. And that puts these millions of jobs at serious risk.

That’s reason enough to act. But these criminals are also putting Minnesota families in danger by flooding our nation with counterfeit products – not just bootleg movies and software, but phony medications and knockoff equipment for first responders.

We cannot simply shrug off the threat of online piracy. We cannot do nothing.

I have supported the approach Judiciary Committee Chairman Patrick Leahy has taken in crafting legislation to respond to the threat of online piracy – and I appreciate his leadership on this important issue.

But I’ve also been listening carefully to the debate – and to the many Minnesotans who have told me via email, Facebook, Twitter, and good old fashioned phone calls that they are worried about what this bill would mean for the future of the Internet.

Frankly, there is a lot of misinformation floating around out there: If this bill really did some of the things people have heard it would do (like shutting down YouTube), I would never have supported it.

But that doesn’t mean we shouldn’t take seriously the concerns people have shared. And if holding off on this legislation gives us an opportunity to take a step back and try to bring everybody back to the table, I think it’s the right thing to do. This is a difficult issue, and also an important one. It’s worth getting this right.

I strongly believe that we need to protect intellectual property – and protect the free and open Internet. I think most people, even those who have expressed concern about this particular bill, agree. And it’s my hope that we can now build a stronger consensus around how to accomplish these two important goals.

Thanks for reading. And for those of you who have written to me about this issue (even if it was an angry letter), thanks for being honest with me. I’ll always return the favor.

#68 ::: Phil Palmer ::: (view all by) ::: February 08, 2012, 02:54 PM:

I hope this link is viewable in your countries. It's still very much an alternative viewpoint here but here's hoping the consensus will grow. It's an interview with the producer of the Black Eyed Peas about the Kim Dotcom arrest.

#69 ::: Tom Whitmore ::: (view all by) ::: February 08, 2012, 02:59 PM:

Quite viewable here. Interesting.

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