For the beginning of this rant, see SOPA Part 1.
Well, the Internet Business Lobbyists won. They successfully motivated the uninformed bandwagon-hoppers of Facebook to call their senators and sign petitions about bill that they never read in order to allow congress to postpone the vote. And that’s not so hard. After all, congressmen hate to work.
Admittedly, I understand the fear and distrust surrounding these acts and their authors. But in my extensive reading of the backlash in the last week, I started to notice that it’s not SOPA or PIPA that people are getting up-in-arms about. It’s copyright law.
SOPA and PIPA are just means to enforce laws already in place. And the few arguments I have heard and read that actually are about the bill have no basis in fact. They are simply conspiracy theories that have played telephone for so long that they effectively induced fear and action by means of exaggerated legend.
This petition was circulated around the Internet on the Blackout of January 18. Google has since rephrased the text on the site, but I would like to address the short message that was printed that day:
Fighting online piracy is important. The most effective way to shut down pirate websites is through targeted legislation that cuts off their funding. There’s no need to make American social networks, blogs and search engines censor the Internet or undermine the existing laws that have enabled the Web to thrive, creating millions of U.S. jobs.
Too much is at stake – please vote NO on PIPA and SOPA.
Sounds fair, right?
1.) The thing is, “shutting down pirate websites through targeted legislation that cuts off their funding” is EXACTLY what SOPA and PIPA do. These pieces of targeted legislation go directly after:
(i) against any entity served under paragraph (1) that knowingly and willfully fails to comply with the requirements of this subsection to compel such entity to comply with such requirements; or
(ii) against any entity that knowingly and willfully provides or offers to provide a product or service designed or marketed for the circumvention or bypassing of measures described in paragraph (2) and taken in response to a court order issued pursuant to this subsection, to enjoin such entity from interfering with the order by continuing to provide or offer to provide such product or service.
2.) Nowhere do they “undermine existing laws that have enabled the Web to thrive.” In fact, voting “no” does just that. Here is SEC. 2a of SOPA:
(1) FIRST AMENDMENT- Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution.
(2) TITLE 17 LIABILITY- Nothing in title I shall be construed to enlarge or diminish liability, including vicarious or contributory liability, for any cause of action available under title 17, United States Code, including any limitations on liability under such title.
(b) Severability- If any provision of this Act, or the application of the provision to any person or circumstance, is held to be unconstitutional, the other provisions or the application of the provision to other persons or circumstances shall not be affected thereby.
3.) As is noted above, SOPA and PIPA CANNOT “censor the Internet,” unless of course copyright law in itself is censorship. And if so, it’s the copyright law that must be changed, not the bills that enforce it.
This talk is pretty much just railing against current copyright law. His disagreement with the law requires a completely different forum and plan of attack (like changing the law, not the enforcement). The majority of this talk essentially says that the law should not be enforced because everyone has been breaking it for so long. And it is geared directly toward the people who are used to breaking the law. Let me present an analogy:
Let’s say we live in a world with all the same laws we have now, but when you go to a store, you are under the honor system, and simply have to drop money in a basket for whatever you purchase. With humans being innately lazy and selfish, we as a society would begin to ignore that basket, rationalizing our taking: “Oh! I forgot to drop money in the basket on the way out. I’ll pay double next time,” “They didn’t have the cereal I really like, and I have to try this new kind, so I’m not going to pay,” “I just don’t have the funds right now…” Eventually these humans become parents and role models, but don’t tell their kids how a store works.
It goes on and on until somebody realizes, “This jam is really good! I think I’ll take a bunch of jars and see how much I can get for it on the street…” Eventually the government realizes this abuse is hurting the livelihood of thousands of people. Some legislation goes through saying, “What you’re doing has always been illegal, but now we’re going to enforce the law to protect the shop owners and all the people who work so hard to grow, manufacture, ship, and package your food. If you don’t pay, you can get in trouble with the law.”
Clay Shirky would get ticked off that the government was going to be ensuring his honesty.
With that off my chest, here are the things he actually said about what’s wrong with SOPA:
1.) “Now the way they propose to do this is to identify sites that are substantially infringing on copyright –although how those sites are identified is never fully specified in the bills –“
Detectives are not instructed on exactly how to go after certain types of criminals within its legislation. That’s why some police forces are better than others. The bill does point to “the Intellectual Property Enforcement Coordinator and the heads of appropriate law enforcement agencies.” (SEC102.F.1). And it does go into great detail about who can be designated as an infringer.
2.) “They want to take them out of the domain name system. Now the domain name system is the thing that turns human-readable names, like Google.com, into the kinds of addresses machines expect — 220.127.116.11. Now the problem with this model of censorship, of identifying a site and then trying to remove it from the domain name system, is that it won’t work. And you’d think that would be a pretty big problem for a law, but Congress seems not to have let that bother them too much. Now the reason it won’t work is that you can still type 18.104.22.168 into the browser or you can make it a clickable link and you’ll still go to Google. So the policing layer around the problem becomes the real threat of the act.”
I will ignore his incorrect use of the word “censorship” to get to the heart of this section. Yes, the domain process only explicitly talks about removing the site from the domain name system, and the wording is pretty lazy in ignoring the Internet Protocol address. But the process of stopping piracy also outlines other measures like forcing search engines to eliminate the infringing site from popping up in searches and by halting all advertising and transactions:
Sec102.c.2.(B) INTERNET SEARCH ENGINES- A provider of an Internet search engine shall take technically feasible and reasonable measures, as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order, designed to prevent the foreign infringing site that is subject to the order, or a portion of such site specified in the order, from being served as a direct hypertext link.
Sec103.(b) Denying U.S. Financial Support of Sites Dedicated to Theft of U.S. Property-
(1) PAYMENT NETWORK PROVIDERS- Except in the case of an effective counter notification pursuant to paragraph (5), a payment network provider shall take technically feasible and reasonable measures, as expeditiously as possible, but in any case within 5 days after delivery of a notification under paragraph (4), that are designed to prevent, prohibit, or suspend its service from completing payment transactions involving customers located within the United States and the Internet site, or portion thereof, that is specified in the notification under paragraph (4).
(2) INTERNET ADVERTISING SERVICES- Except in the case of an effective counter notification pursuant to paragraph (5), an Internet advertising service that contracts with the operator of an Internet site, or portion thereof, that is specified in a notification delivered under paragraph (4), to provide advertising to or for such site or portion thereof, or that knowingly serves advertising to or for such site or portion thereof, shall take technically feasible and reasonable measures, as expeditiously as possible, but in any case within 5 days after delivery the notification under paragraph (4), that are designed to–
(A) prevent its service from providing advertisements to or relating to the Internet site, or portion thereof, that is specified in the notification;
(B) cease making available advertisements for such Internet site, or portion thereof, that is specified in the notification, or paid or sponsored search results, links, or other placements that provide access to such Internet site, or portion thereof, that is specified in the notification; and
(C) cease providing or receiving any compensation for advertising or related services to, from, or in connection with such Internet site, or portion thereof, that is specified in the notification.
Honestly, I would rather Congress pass some sort of enforcement and perfect it over time than pass nothing at all. At least SOPA (whether made law or not) is finally educating people about copyright.
3.) So what PIPA and SOPA risk doing is taking a centuries-old legal concept, innocent until proven guilty, and reversing it — guilty until proven innocent.
This is just outright wrong. Pretty much the entire text of the bill is about the excessive paper process required to take down a site. If anything, SOPA gives too much leeway to the infringer. Besides, when someone is suspected of murder, s/he is brought to jail where s/he stays until trial. If the suspect can post bail, s/he is still restricted from doing certain things, like skipping town.
4.) Mr. Shirky also says SOPA can take down Google, Facebook, Twitter, and YouTube. Even if that were the intent of the bill, by reading the bill, you see how impossible that would be. Every one of us signs a Terms of Service agreement when we register for a site that says we will not post anything that violates copyright law. In fact, did you all get your letter from Google on the change of their terms of service this morning? Terms of Service allow sites to simply suspend the suspected copyright infringer’s link to the bootlegged video of Beyonce’s concert. And YouTube does it all the time. All the copyright holder has to do is fill out a form and it’s taken down.
Right now, SOPA is so pro-Internet that when notice is served to the infringing site, the Attorney General has to explicitly say exactly what is infringing and where. Then whomever is question can write back and say, “Golly, that’s a lot of work to take down that one link. I don’t wanna.” Then the Attorney General has to go back to square one.
5.) When you look atthe people who co-signed on the SOPA bill, people who’ve co-signed on PIPA, what you see is that they have cumulatively received millions and millions of dollars from the traditional media industries.
Yeah, and when you look at who is circulating this misinformation on the bill, you’ll see that they will cumulatively receive billions of dollars from the advertisers for infringing sites. Just saying…
I love the Internet. In fact, because it is such a non-censored entity, I am allowed to rail against Google, who turns up a search for this article, shows me analytics, and even can help me make money on ads if I wanted. But I am also an artist, and I respect the law. Yes, the Internet has changed things, and most people will continue to illegally download music. It is now the musician’s job to think outside the box on how to monetize their art. But that doesn’t make theft right.