The Poop On SOPA

January 18, 2012 in Misc by RangelMD

Today is international blackout day, when many different web sites go “dark” to protest two bills pending before Congress; The Stop Online Piracy Act (SOPA) and the less restrictive but no less annoying Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PIPPA). What’s the fuss?

Once upon a time, video pirates were limited to taping movies off cable and selling the tapes to their friends. But this didn’t put a dent in Hollywood’s ability to make and profit enormously from crappy movies. Then came the internet (or the internets for those of you in Texas) and people could easily share digitized copies of music and more crappy movies. Then came the Digital Millennium Copyright Act of 1998 (DMCA) that brought copyright protection into the digital domain to outlaw the intentional sharing of copyrighted material.  But the problem with the DMCA was that it was ineffective outside of US court jurisdiction.  Other than war, how does a greedy media mogul prevent foreign internet sites from providing illegal downloads to Americans? Answer; make US internet service providers (ISPs) liable and responsible for blocking access to these illegal sites. Enter the Stop Online Piracy Act.

The SOPA would allow media companies (or any owner of copyrighted material) to ask the US Attorney General to demand that American ISPs directly block access to any foreign web site that is believed to be violating US copyright law. But that’s not all! The bill allows the Justice Department to seek to prevent internet search engines (Google, Bing) from listing the offending site and stop US internet advertizing companies and internet pay services like PayPal from doing business with the offending site. Additionally, internet companies  that take the initiative and block access to a foreign web site that they believe violates US copyright law would be immune from litigation. Much has been written about this pile of dung pending legislation but I would like to add a few NON-lawyer observations.

  1. SOPA appears to circumvent the 5th and 14th Amendment guarantees of Due Process. All it takes for the US AG to order a web site blocked is to obtain a court order. The order remains in effect indefinitely. There does not appear to be any provisions in the act to  allow for a hearing or trial to give the offending site and/or the ISP a chance to present their case even if the “foreign” site is owned by a US company.
  2. The lack of Due Process makes it more likely that SOPA could be used to restrict free speech by a person or organization seeking to abuse the law.
  3. Lack of Due Process misplaces the burden of proof. Any involved party can  petition the court to overturn the order but since the initial order remains in effect indefinitely the burden of proof is placed on the accused (the ISP or other domestic internet company).  This is exactly the opposite of our innocent until proven (by the government)  guilty legal traditions.
  4. SOPA is a huge departure from current law that limits the liability of  Internet Service Providers for the activities of their customers. Under DMCA, providers are liable for copyright law violations only if they directly participate  in or directly benefit from illegal activity.  Simply providing internet access that MIGHT be used to download pirated music is not in itself illegal. This is consistent with existing law that does not require telecommunication companies to verify that their products are being used only for legal purposes.
  5. SOPA places the burden of monitoring and preventing international digital copyright violations on the internet service providers instead of with law enforcement and foreign governments.  Cell phone companies are not required to monitor nor guarantee that pre-paid cell phone are being used for family friendly activities.  Lawmakers need to learn to differentiate between the illegal act and the medium that made such an act possible.
  6. Immunity from litigation for blocking web sites is a legal mess waiting to happen.  What is to prevent a US internet service provider from blocking a “foreign” web site that is actually owned by a US company and direct competitor of the ISP in question? Does Congress really want to dole out liability protection and the power to block web sites to ISPs?
  7. SOPA does not make any exceptions for non-profit sites, archives, educational sites, etc.
  8. SOPA will not be effective if utilized as intended. Piracy sites and services are notorious for finding technical ways around censorship. The technology neophytes who wrote this legislation seem to be blissfully unaware of the dynamic nature of the internet. Pirate web sites are not like illegal bordellos that can be raided and shut down.  New DNS addresses and servers can be set up and the new address disseminated online via social networks in a fraction of the time it takes for a court to issue an order.  A more likely scenario is for a game of “cat and mouse” to be played out over weeks to months as pirate sites stay several steps ahead of the Justice Department.
  9. A SOPA that does not work as intended could lead to an actual American firewall. If trying to block access to individual addresses only leads a futile cat and mouse chase across the internet, the Justice Department may decide to broaden its court order to the blocking of entire foreign ISPs, networks, or even entire countries. This is not a slippery slope. This is a realistic technical solution and logical end-point for a law that aims to prevent the illegal sharing of copyrighted material. There is nothing in SOPA to prevent this from happening.
  10. Is SOPA really needed? There is no hard evidence that illegal file sharing has had any large or lasting impact on the legal sales of nor the production of  intellectual material. If the Justice Department were able to successfully block every single global illegal file sharing site, would it really result in any significant additional revenue for the entertainment industry? Is it worth the potential chaos, abuse, and damage to the freedom of the internet just to secure a few million more in income for an entertainment industry that is in no danger of becoming extinct anytime soon?

Congresses’ repeated attempts to focus more attention on preventing illegal downloads of such American classics as Freddy Got Fingered than they do in passing laws to prevent internet censorship and guarantee internet access is more than a clear indication that our representatives are by-and-large older white men who don’t known how to use a computer, think that the internet is literally a system of tubes, believe that freedom and commerce can be protected by restricting it, and frequently get calls and visits from a nice gentleman who works for the MPAA or the RIAA and would like to treat them to a little lunch or a round of golf in Tahiti.

Please write your Congress-person or Senator. Also, let the sponsor of SOPA, Rep. Lamar Smith (R-TX), know what you think of him and his bill.

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