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January 04, 2012

SOPA and PIPA are Bipartisan Bad Policy, Really Bad Policy

In China you can't get to some Internet sites: no Facebook, no YouTube, no Twitter. Search engines can't find the "Falun Gong" or "Tiananmen Square massacre". We would never do that kind of blocking here in the US, you say. Well, not so fast. If either House bill SOPA (Stop Online Piracy Act) or Senate bill PIPA (Protect IP Act) or something in between passes both houses of Congress and is signed by the President, Internet censorship, unreachable websites, and forbidden searches will be the law of this land.

The Arab Spring has been enabled by the inability of some governments to block Internet communication. SOPA and SIPA both require that Internet blocking tools be developed and deployed here. Maybe we trust our own government not to misuse these (I don't!); but do we really want to be responsible for the proliferation of censorship and blocked communication?

Why, you ask, would our Congresspeople want to impose censorship anywhere? Why would they want to slow down the most vigorous parts of the US economy?

The answer, at least, is simple. These are bills that Hollywood wants to protect its movies from online piracy, and Hollywood makes mega-campaign contributions and even gives Congresspeople bit parts in its movies. There is nothing partisan about campaign contributions.

To be fair, online piracy is a problem as are websites which sell counterfeit goods – especially counterfeit drugs. Owners of intellectual property including movies, books, songs, and trademarks are entitled to protection under the law. US Internet sites should not intentionally aid or abet domestic or foreign sites which are breaking the law. In fact we already do have laws on the books to protect intellectual property and prevent fraud.

Under the existing Digital Millennium Copyright Act (DMCA), websites like YouTube have an obligation to remove material subject to copyright from their sites – if they are notified by the copyright holder that the material is an infringement. Companies like Google have been punished by fines for KNOWINGLY facilitating the sale of counterfeit products. The key issue is that YouTube is NOT responsible for checking every video that you upload to make sure you have not violated someone's copyright. If there were such an obligation – similar to requiring the Post Office to open every piece of mail to check for fraud or contraband, there would clearly be no services like YouTube. Similarly your Internet Service Provider (ISP) is not liable if you use your connection to download pirated stuff. If the ISP has to be a censor, then the ISP would have to examine everything you do (read your email, for example).

SOPA and PIPA are nominally aimed at foreign sites since US sites which break the law can (properly) already be shut down. However, foreign sites are beyond the reach of US law; so, the SOPA and PIPA logic goes, we must block access to these sites from the US. Blocking sites means that US search engines can't point to them (just like China); US domain name servers (DNS), which convert links like www.thisandthat.com to IP addresses reachable on the Internet, must "forget" how to convert the forbidden links; and our ISPs can be required to block our access to forbidden websites – meaning, of course, that our ISPs must examine which websites we do access and will probably have to keep a log to prove they blocked us when they should. Social media sites will have to examine all user-submitted content to assure that it does not contain forbidden links.

Under SOPA and PIPA you won't be able to access the same Internet that you see in countries which value Internet freedom; we'll be more like China and less like what we used to be. Here in the US we operate Internet proxy servers, which are used by many Chinese to evade their government's censorship of the Internet. These proxy servers might well be illegal under SOPA and PIPA because they would also provide a way to reach websites which would otherwise be banned in the US.

Google and Facebook will hire a legion of lawyers and survive even SOPA and PIPA, which they oppose; startup social media sites will have a hard time getting funding when they can easily be bankrupt by possibly frivolous lawsuits over postings by their users. There might not be a next Twitter. You may or may not be a user of social media, but you are a beneficiary of the fact that social media innovation creates jobs here in the US where most of that innovation happens – unless we choose to shut it off.

On his website, Senator Patrick Leahy (D-VT), chair of the Senate Judiciary Committee and prime sponsor of PIPA, says:

"The PROTECT IP Act is supported by businesses and organizations across the political spectrum from labor unions to the Chamber of Commerce and the National Association of Manufacturers, from the National Association of Broadcasters to the cable industry.  "

He goes on to point out, correctly, that it was approved unanimously by all the Republicans and Democrats on the Judiciary Committee. The first part of the press release makes the statement that the bill contains:

"..authorization for both the Attorney General and rights holders to bring actions against online infringers operating an internet site or domain where the site is 'dedicated to infringing activities,' but with remedies limited to eliminating the financial viability of the site, not blocking access [nb. emphasis mine]."

However, the description of the bill further down in the same press release makes very clear that this is all about blocking access:

"The court is authorized to issue a cease and desist order against a rogue website.  If the court issues that order, the Attorney General is authorized to serve that order, with permission of the court, on specified U.S. based third-parties, including Internet service providers, payment processors, online advertising network providers, and search engines.  These third parties would then be required to take appropriate action to either prevent access to the Internet site [nb. emphasis again mine] (in the case of an Internet service provider or search engine), or cease doing business with the Internet site (in the case of a payment processor or advertising network)."

Senator Leahy is usually a defender of civil liberties. It seems in this case he may have been misled by his friends in Hollywood about the draconian nature of the protections they are seeking.

According to Wikipedia:

"Opponents of SOPA include Google, Yahoo!, Facebook, Twitter, DynDNS, AOL, LinkedIn, eBay, Mozilla Corporation, the Wikimedia Foundation, and human rights organizations such as Reporters Without Borders, the Electronic Frontier Foundation, the ACLU, and Human Rights Watch

"On December 13, Julian Sanchez of the Libertarian think tank Cato Institute came out in strong opposition to the bill saying that while the amended version "trims or softens a few of the most egregious provisions of the original proposal... the fundamental problem with SOPA has never been these details; it's the core idea. The core idea is still to create an Internet blacklist..."

"Computer scientist Vint Cerf, one of the founders of the Internet and Google vice president, wrote House committee chairman Lamar Smith, saying "Requiring search engines to delete a domain name begins a worldwide arms race of unprecedented 'censorship' of the Web," in a letter published on CNet…

"An editorial in Fortune wrote, "This is just another case of Congress doing the bidding of powerful lobbyists—in this case, Hollywood and the music industry, among others. It would be downright mundane if the legislation weren't so draconian and the rhetoric surrounding it weren't so transparently pandering.""

If this were just a commercial argument between old line entertainment businesses like the movie makers and new media companies like Google and Facebook, the issue would not be nearly as important as it actually is. These bills are the equivalent of banning all guns because some guns are used in felonies; they are the equivalent of allowing the government to exercise "prior restraint" of newspapers because sometimes libel gets published. These bills would move the US in the direction of some of the worst practices of China and give comfort to the world's remaining tyrannies who are trying desperately to cut off free communication. These are bills which must not pass.

If you agree, please email your Congresspeople.

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