Last week the acronyms SOPA and PIPA were unheard of, much less decipherable, by most people. Yet the other day a groundswell of opposition to them, led by Wikipedia, Google, and other Internet entities, was powerful enough to persuade a significant number of members of Congress to abandon their active or tacit support for those things. The juggernaut heading toward greater government control over the Internet met massive resistance and will now have to undergo renovation to regain its momentum.
We may be certain that those who seek this control will not give up easily.
By now most people know that SOPA is (was) the Stop Online Piracy Act and PIPA the Protect Intellectual Property Act, the former introduced in the House, the latter in the Senate.
They may sound innocuous, though we have enough experience with government to know that nothing about it should be assumed to be innocuous. Hidden powers and unintended consequences lurk in everything it does, regardless of intentions. (And, let’s say it, we can’t count on intentions of the high caliber.) So even if “stopping online piracy” and “protecting intellectual property” sound good to you, a healthy dose of skepticism is in order.
The bills are directed at foreign websites that allegedly provide or “facilitate” the provision of copyrighted material without permission. The bills’ reference to foreign sites comforts some people, but it shouldn’t. The Department of Homeland Security already has the power to shut down domestic websites by seizing their domain names — and has done so many times. (Try going to this site.) As this was written news came in that the government has moved against the file-sharing site Megaupload.com, which is based in Hong Kong but uses servers in the United States.
The U.S. government has a more difficult time, or so it is said, with fully foreign sites, so the powerful movie and music industries (among others) want it to have the power to do the next best thing: force, with less than minimum due process, search engines (like Google), payment services (like PayPal), and Internet service providers (ISPs) to stop you from visiting and dealing with those sites. (The U.S. government apparently doesn’t need SOPA to pursue alleged foreign offenders. It is extraditing a British student for “running a website posting links to pirated TV shows and films, despite significant doubts over whether such sites break any UK laws.” The student uses no American servers and has never been to the United States.)
The prospect of these new powers outrages those who value the openness of the Internet and fear the inevitable chilling effects of government authority in the area of free expression. The idea that the government could force American companies to prevent you and me from accessing foreign websites violates the spirit of the Internet. That’s why the protest took place Wednesday, featuring the self-suspension of Wikipedia and other gestures of opposition to the looming interference.
There are two issues here, of course: the reasonableness of the proposed remedy and the legitimacy of copyright itself. I’ll largely restrict my remarks to the first, since I have discussed intellectual property (IP) elsewhere (here, here, and most recently here.)
One need not oppose IP to be concerned with SOPA and PIPA. Any authorization of power will contain vague language giving the government wiggle room and therefore discretion in whom it targets and why. A site might be blocked — and search-engines, payment-services, and ISP harassed – because a visitor posted something said to be protected by copyright. And what might happen to one of these domestic companies if it were deemed lax in monitoring sites that facilitate access to the wrong content? We should assume that such a law would be construed in the broadest way, considering the clout of the companies that lobbied for it. Laws, like constitutions, cannot interpret themselves.
New York Times tech columnist David Pogue sounds slightly naïve when he writes, “[T]he solution is to work on the language of the bills to rule out the sorts of abuses that the big Web sites fear.” He clearly mistakes the government for a disinterested dispenser of justice.
Joshua Topolsky illustrates the potential danger:
Say a French company just started a social networking site in which users can upload videos of themselves singing. Now let’s say some kids upload a video of themselves singing their favorite Britney Spears song, not even playing back the original recording but simply singing along innocently to a song they like.
In the eyes of Spears’s record label or any number of parties associated with her continued cash flow, that might very well look like an instance of piracy — and indeed, major labels have had content pulled off YouTube for similar “violations.” All the label has to do is send a letter to someone such as your ISP and request that the service stop routing traffic to the offending site, and, boom, no more French-sharing site for U.S. Internet users. And what’s really scary is that U.S. Internet service providers have immunity when it comes to what they can pull from their networks, so that French site might not even have a clear path to resolving the issue.
Now take that concept and begin to apply it across all the places you could potentially find “infringing” material. Sites about art, sites about movies, sites that let users generate content of all types — some of that content containing pieces of other work that should be considered fair use by any modern standard. Suddenly, a lot of destinations on the Internet will begin to look like island vacation spots — that is, they’re really hard to get to. And the impact won’t just be cultural or legal; the technical workings of the Internet itself will be dramatically affected.
Tampering with the Infrastructure
Topolsky quotes a colleague, Nilay Patel, who compared these bills to a crazy effort to stop the sale of unauthorized DVDs in New York City: It’s “the effective equivalent of blowing up every road, bridge and tunnel in New York to keep people from getting to one bootleg [DVD] stand in Union Square — but leaving the stand itself alone.”
Here’s the rub: As even Pogue admits, “the bills won’t work. For example, they’d make American Internet companies block your access to domain names like ‘piracy.com,’ but you’d still be able to get to them by typing their underlying numerical Internet addresses, like 126.96.36.199. In other words, anybody with any modicum of technical skills would easily sidestep the barriers.” (The sponsors have reportedly dropped the provision that permits messing with domain names, primarily because it would compromise Net security.)
They may not work, but they would allow the government wide scope to hassle lawful companies.
So where does that leave us? I see no remedy consistent with liberty for stopping foreign sites from making copyrighted material available. Perhaps that in itself should prompt us to question the legitimacy of so-called intellectual property. In a real sense, information cannot be owned, and attempts to pretend otherwise move us toward a police state.