Wednesday, January 18, 2012

Paving the road to an authoritarian government

Doubtless you’ve already read two or three posts from other people explaining why the House of Representatives’ proposed Stop Online Piracy Act (SOPA)[*] is such a horrendously bad piece of legislation.  Jeffrey Tucker has a quick piece on The Chant Café which tries to explain how SOPA’s passage would affect the emergent renaissance of sacred music. 

There are several major concerns with SOPA’s current language.  The most disturbing of these is its placement of primary responsibility for enforcement, along with burden of proof, on host websites for policing not only themselves but sites to which they link for potential copyright infringement.  “A provision in the bill states that any site would be blocked that ‘is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation.’[†] Critics have read this to mean that a site must actively monitor its content and identify violations to avoid blocking, rather than relying on others to notify it of such violations.”[1]  

In immediate practical terms, it would be like a requirement for McGuffin Heights Mall to do full background checks not only on its own employees but also on those of their vendors and lessees.  But there are other complaints, ranging from privacy issues to national security issues. 

Addressing transparency of enforcement, Brooklyn Law School professor Jason Mazzone claims, “Much of what will happen under SOPA will occur out of the public eye and without the possibility of holding anyone accountable.  For when copyright law is made and enforced privately, it is hard for the public to know the shape that the law takes and harder still to complain about its operation.”[2]

Even more disconcerting, at a time when federal infringement on individual rights is taking ever more ominous shapes, leading George Washington U. professor Jonathan Turley to claim that “the United States now has much more in common with such regimes [as China and Cuba] than anyone may like to admit,”[3] SOPA gives the U.S. Attorney General greater power over the flow of information over the Internet.  According to Trevor Timm of the Electronic Frontier Foundation, “PIPA and SOPA would also give the Attorney General new authority to block domain name services, a provision that has been universally criticized by both Internet security experts and First Amendment scholars. … The Attorney General would also be empowered to de-list websites from search engines, which, as Google Chairman Eric Schmidt noted, would still ‘criminalize linking and the fundamental structure of the Internet itself.’  The same applies to payment processors and advertisers.”[4]

SOPA and PIPA are badly drafted legislation that won’t be effective at their stated goal (to stop copyright infringement), and will cause serious damage to the free and open Internet.  They put the burden on website owners to police user-contributed material and call for the unnecessary blocking of entire sites.  Small sites won’t have sufficient resources to defend themselves.  Big media companies may seek to cut off funding sources for their foreign competitors, even if copyright isn’t being infringed.  Foreign sites will be blacklisted, which means they won’t show up in major search engines.  And, SOPA and PIPA build a framework for future restrictions and suppression.

Tucker expresses his concern:

The sharing of content has been the key to the renaissance of sacred music in our time., CPDL, and many others, have provided the music that has inspired a generation.  It was all provided for free and put into the commons.
… [Very] little of this would have happened if the burden of proof over copyright and piracy had shifted against the institution doing the sharing.  There are always deep pockets ready to make a claim of ownership, whether true or not and however ambiguous the claims.  The legal tangles and possible penalties alone would have been enough to keep the entire library off line.

“Deep pockets” … ay, there’s the rub.  The main motivation for this legislation comes from large corporations that have been victimized by large-scale foreign pirates and vendors of name-brand knockoffs, from Ford Motor Co. to Macmillan US, from Viacom to L’Oreàl, from the Business Software Alliance to the Entertainment Software Association.  In theory, justice belongs to the side with the better case; in practice, to the side that can better afford the attorneys’ fees.

In theory, we can concede that, while most of these businesses are far from going bankrupt because of Internet pirates, consumers themselves are often hurt by second- and third-rate shoddy products pretending to be high-quality goods.  However, because many electronic media are subject to widespread illegal distribution through sites such as isoHunt and SUMOTorrent even though such sites receive no direct compensation for providing the torrent links, the legislation penalizes noncommercial infringement.  This has plenty of social networking sites, from Facebook and YouTube to eBay (and even the American Library Association) up in arms. 

Granting that sharing a $600 software package with 76,845 of your closest friends tears the back out of the “fair use doctrine”, is that just cause for legislation that effectively allows major corporate interest groups to “create an Internet blacklist”[5] that shut down not just pages or sub-domains but entire domains with little more than a single accusation?  Granting that every dollar given to foreign pirates is another dollar out of our already sagging GDP, is it then smart to adopt a series of restrictions that, according to some estimates, may negatively impact as much as $2 trillion in GDP and 3.1 million jobs?[6]

Good intentions, it seems, are paving the road to an authoritarian government of the élite, by the élite and for the corporations, through the medium of badly-considered laws.  We’ve already had our Fourth and Fifth Amendment rights nullified this term.  Let’s not throw the First Amendment under the bus as well.

[*] 112 HR 3261; see full text here.
[†] The language is taken from Sec. 103a:1, which defines “An Internet site dedicated to the theft of U.S. property”.  See pages 25-26.

[1] Parker Higgins (November 15, 2011). "What's On the Blacklist? Three Sites That SOPA Could Put at Risk". Deeplinks blog. Electronic Frontier Foundation. David Sohn (October 27, 2011). "House Copyright Bill Casts Dangerously Broad Net". Center for Democracy and Technology. Cited in Wikipedia (January 18, 2012). Stop Online Piracy Act. Retrieved January 18, 2012 from Wikipedia.
[2] Jason Mazzone (November 12, 2011). "The Privatization of Copyright Lawmaking". Retrieved January 18, 2012 from Torrentfreak.
[3] Jonathan Turley (January 13, 2012). “10 reasons the U.S. is no longer free”.  Retrieved January 18, 2012 from The Washington Post:
[4] Trevor Timm (January 16, 2012). “How PIPA and SOPA Violate White House Principles Supporting Free Speech and Innovation”. Retrieved January 18, 2012 from Electronic Frontier Foundation.
[5] "Julian Sanchez | Cato Institute: Policy Scholars". Cited in Wikipedia (January 18, 2012). Stop Online Piracy Act. Retrieved January 18, 2012 from Wikipedia.
[6] Mike Masnick (November 22, 2011). “The Definitive Post On Why SOPA And Protect IP Are Bad, Bad Ideas”.  Retrieved January 18, 2012 from Techdirt.