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.That’s just one of the features of these bills. Here’s another:
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.
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.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.
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.
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.