[It’s taken me a while to get my thoughts in order regarding this issue, especially since so many others have already spoken about it more eloquently than I ever could
. But this is such an important topic, and it has been weighing on my mind so heavily as of late, that I just couldn’t wait any longer – I had to put my thoughts down in words.]
SOPA (the Stop Online Piracy Act; H.R. 3261) is a bill before the United States House of Representatives. In brief, it allows both the Department of Justice and copyright holders to request court orders against websites that are allegedly distributing copyrighted material without permission, or are just enabling others to do so. These court orders can require payment processors (e.g., PayPal, Visa, MasterCard, etc.) to freeze accounts, force search engines to de-list the accused website, and require ISPs to block the site’s DNS records.
(Strangely enough, the act also contains some other similar provisions for websites selling discount prescription drugs and surplus military hardware, of all things.)
The freezing of accounts is bad enough, but the blocking of DNS records is perhaps the most frightening aspect of this bill, as this amounts to no less than outright censorship of the Internet, similar to that seen in places like China and Iran.
I have a number of concerns with this bill, but I will just stick to the top few, the ones I think are the most egregious.
Lack of Due Process
Perhaps the most offensive aspect of this bill is its removal of the protection of due process for the accused. The 5th Amendment to the U.S. Constitution guarantees the right to due process, but this bill almost completely denies that right to those accused under its terms.
The right to due process is one of those really important rights for any free society – right up there with freedom of speech, freedom of religion, and the right to a trial by jury.
SOPA circumvents due process by making it so that the government (on the say-so of a copyright holder) has the right to take away something of yours (your website, and/or your money) without giving you a chance to challenge this. The takedown actions authorized under SOPA are effective immediately, and there is little to no burden of proof on those asking for the takedown, and even less chance of retribution on those asking for the takedown should their claims later be proven false.
Immediate action can be understandable in some circumstances (child kidnapping, serial killers, etc.), but for something as mundane as copyright infringement, it seems a bit excessive.
Which brings me to my next point…
The text of SOPA is purposefully very, very, very broadly written. This, I think, stems from a desire to sort of “cover your bases,” by trying to be as broad as possible so there are no loopholes.
Unfortunately, in this case the broad language simply serves to make this bill applicable to almost everything, in the same way that a law that said “any type of death threat, no matter what counts as attempted murder” is applicable to almost anything. If our actual criminal statues were worded this broadly, every single one of us would be in jail by now, because there is not a one of us who hasn’t at some point in our lives done something that could be construed as a death threat – from angry words during an argument to giving a rude gesture while driving.
This sort of broad, sweeping language doesn’t work for criminal law, and it doesn’t work for SOPA either.
SOPA claims to be aimed at stopping large-scale for-profit copyright infringement, but the actual text means the law would apply to any type of copyright infringement, no matter how small or insignificant.
The Internet is a global network. But the people who wrote SOPA seem to think that the only part of the Internet that counts is the part that’s in the United States.
This is so stupidly untrue as to not require further elaboration.
SOPA would allow blocking of websites for copyright infringement… but it claims to be aimed at “foreign” websites. And the only blocking it authorizes is to block those sites from being seen by… Americans. So, it doesn’t actually “block” the sites, it just blocks them from being seen in America. Anyone in the rest of the world can keep on visiting the site, and download unauthorized copyrighted material to their hearts content.
Your guess as to how, exactly, this is supposed to “stop online piracy” is as good as mine.
The website blocking authorized by SOPA is done at the DNS level – meaning that it simply stops DNS servers (only in the U.S., as I mentioned above) from resolving the site’s domain name to its numerical IP address.
Which means that if the site www.example.com was blocked, but you knew it’s IP address (e.g., 192.168.55.34), you could just type in the numerical address instead, and it would work just fine.
This is the most obvious example as to why SOPA would be ultimately ineffective at its stated purpose – that is, stopping “online piracy.”
This is a bit like covering your eyes while witnessing a crime, and saying “I can’t see it, so it’s not happening.”
Some of the other aspects of the act – for example, forcing payment gateways (such as PayPal or Visa or MasterCard, etc.), to freeze the accounts of the website’s owners – might be somewhat effective, but again, remember that this only affects payment gateways within the United States. If a “foreign” website is distributing unauthorized copyrighted material for profit, chances are they are going to use a “foreign” payment gateway as well. So, once again, SOPA achieves nothing towards its stated goal.
It Is Censorship
Obviously, SOPA was not designed as censorship per se, but due to the way it is structured, it would effectively be censorship.
Remember, SOPA allows someone to claim you are violating their copyright, and have your site completely blocked.
This is true even if it turns out that you were not violating their copyright, or that your use of copyrighted material falls under “fair use.”
Now, imagine that you are a big website (like, say, YouTube, Facebook, Flickr, or Twitter) – are you going to want to run the risk of having your site suddenly blocked because one of your users uploaded something that is copyrighted (even if it is ultimately found to be fair use)? Of course not!
Even though sites like Facebook and YouTube are probably big enough to get unblocked fairly quickly, the simple threat of being blocked at a moments notice is enough to force them – out of simple self-preservation – to severely censor their users. They just can’t take the risk – the potential harm to them (having their site blocked) is too great to even risk letting users upload anything that might, possibly, maybe, be considered copyright infringement.
Out of Proportion
We’ve seen how SOPA is carrying a pretty big stick when it comes to enforcement. But let’s think for a moment about what it is meant to be stopping, exactly:
Not “piracy,” not “theft of intellectual property,” but simple infringement of copyright.
Copyright, remember, is not a “fundamental” or “universal” right. It is a (time-limited) government granted monopoly on things you create, to encourage people to create things, knowing that others can’t just take what you’ve done for free and make money from it. It’s an incentive to create – nothing more, and nothing less.
Now consider that SOPA would make copyright infringement a felony.
Think about that for a moment – this law would make illegally copying someone’s work be on the same criminal level as murder and kidnapping.
The other aspects of SOPA – blocking websites and freezing accounts – are also wildly out of proportion with the actual harm done.
Imagine if other laws worked the same way – for example, if a particular neighborhood was known to have a lot of shoplifters stealing, say, packs of gum. The whole neighborhood could find itself suddenly and without warning shut down – no power, no electricity, all roads blocked off and the whole neighborhood under martial law. And all this would happen on the say-so of the gum manufacturer who complained about their products being stolen frequently.
If that seems a bit excessive, consider that this is exactly what SOPA would do, except for copyright violation instead of petty shoplifting.
Online piracy – which is just shorthand for “copyright infringement on the Internet” – is not equivalent to physical theft, despite what some people would like you to believe. If anything, it is a lesser crime than physical theft, which is why SOPA is such a terrible idea – it is wildly out of proportion with the crime it is trying to prevent.
If you have any doubt that the movie and music industries are the major reason why this bill exists, consider this: there is a clause in the act which specifically makes streaming copyrighted content a felony.
Remember that any type of content you can create is automatically covered by copyright. Your kindergartener’s crayon drawing? Covered by copyright. Your vacation photos and home movies? Covered by copyright. That sculpture you made back in art class in college? Covered by copyright. Even the words you’re reading right now are covered by copyright.
But what sorts of content can be “streamed?” Well, you can’t very well stream a drawing, or a photo, or a sculpture. But you can stream music and movies – which are the things that are specifically made into a felony by SOPA.
If that doesn’t convince you that this act was primarily written by and for the movie and music industries, I don’t know what will.
SOPA Must Die
There are so many things wrong with SOPA that I couldn’t hope to cover them all – but I’d like to think I’ve at least covered the big ones. On top of that, it doesn’t help that the people writing and debating this bill admit that they don’t understand the issues involved.
I’ve spent a lot of time trying to think of ways that SOPA could be revised to make it less awful, but there simply is too much wrong with it to be worth salvaging – which is why SOPA must die. It simply is not salvageable as a piece of legislation, and trying to revise it just risks having some of its harmful provisions slip through. It should just be thrown away, and some other more specific and less broad legislation could be drafted instead.
Now, let’s be clear – I’m not saying that online copyright infringement isn’t a problem; far from it. But SOPA is not the answer. We already have the DMCA, which is not perfect (far from it, in fact), but it at least does not have the same problems I’ve outlined here (in particular, the DMCA at least does provide for due process, and it is a much more “surgical” tool for combating copyright infringement, unlike SOPA, which is more like a tactical nuclear bomb in comparison).
Unfortunately, right now the only voices Congress is hearing in regards to these issues come from the movie and music industries, which as I’ve said before, are the ones for whom SOPA (and its Senate cousin, the PROTECT IP Act) was written.
SOPA must be stopped, and it is up to us to remind Congress of this simple and inarguable fact.
If you haven’t done so already, call or email your representative and let them know what you think. Hearing the voices of the people is the only way a democracy can work – so speak now, or forever hold your [CENSORED FOR COPYRIGHT INFRINGEMENT].