What is this SOPA and why does its defeat matter?
You can bury the Tea, but one should not bury the lede….
The second interesting piece at Politico comes from famed Constitutional scholar Laurence Tribe, who more or less acts as a counterweight to Floyd Abram's letter. He basically highlights all of the problems we've discussed over the past few weeks: vague definitions, broadly targeted, will impact perfectly legitimate sites. And, he notes clearly:
“[SOPA] would violate the First Amendment.
“A key provision of the bill would give copyright owners the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice that the site is “dedicated to the theft of U.S. property” — even if no court has actually found any infringement.
“The immunity provisions in the bill create an overwhelming incentive for advertisers and payment processors to comply with such a request immediately upon receipt. Courts have always treated such cutoffs of revenue from speech as a suppression of that speech, and the silencing of expression in the absence of judicial review is a classic prior restraint forbidden by the First Amendment.”
I can’t find the link for the Politico piece, but I believe it to be accurate. SOPA and PIPA are the equivalent of the British Crown trying to tax the Colonists, and then when the Colonists dump some Tea in the Harbor, Parliament comes back over the top in 1774 with the Intolerable Acts: http://en.wikipedia.org/wiki/Intolerable_Acts
SOPA and PIPA would be the new Intolerable Acts. We should not tolerate their passage.
At the end of the day, this is a bid by big rights holders, the Big Content folks who comprise the RIAA, the MPAA, the Disneys and Warner Bros. and Universals and the like, to end the current DMCA regime of how copyrighted content can be made available by end users, citizens of the Net, if you will. While the current regime here in the United States is “notice-and-takedown” (http://iplaw.wikia.com/wiki/Digital_Millennium_Copyright_Act), the Big Content owners don’t like that state of things, since they own the Big Monopolies. Essentially, they want to blow up the Safe Harbors. Turn the Web into a shoot first, shut down, then ask questions later regime.
The http://iplaw.wikia.com/wiki/Stop_Online_Piracy_Act#Major_proponents rhetoric makes it seem that he, at least, is willing to do more to ensure that extraordinary burdens are not placed on legitimate companies so long as they are not the “primary purveyors” of illegal content, and he says that anyone providing a service will be expected to do something in regards to fighting against piracy (http://thehill.com/blogs/hillicon-valley/technology/190781-tech-groups-say-online-piracy-bill-would-create-nightmare-for-web-and-social-media-firms).
But never mind the lip service, this is not really about “overseas pirates.” There are ways to fix that, such as forcing China to enforce their intellectual property rules as part of our trade with them. Piracy is a scourge. Sure. But if that’s the problem, focus on that problem, and leave the notice and takedown regime in place.That goes too far, and makes it clear that piracy is the flag. This is about notice and takedown, and the rollback of the DMCA. The American Revolution was about taxes, specifically the imposition of taxes on the Colonist (like forcing them to buy a certain kind of tea). but they made the cause it about representation and democracy. I get the cause: stop piracy. I just don’t believe that upending the legal regime that has allowed the Web to thrive is the proper response.
The way intellectual property rights have worked in the United States since the drafting of the Constitution, is pretty much as follows: a new technology comes along, such as the printing press. There’s a stated goal: promoting the progress of the science and useful arts, and furthering the freedoms embedded in the Constitution, including the freedoms of speech (and the right to disseminate ideas broadly into the marketplace), the freedoms to be heard and to connect with fellow Americans for the purpose of exchanging ideas, political views, art, and entertainment.
Along comes the Web
When the internet exploded in the 1990s, it was clear that there would need to be a new copyright regime to protect nascent, burgeoning technologies that allowed for greater connection (and connectivity), faster distribution, broader reach, more interactivity, and sharing (of ideas, works, progress writ large). Let’s not forget that Copyright itself is a “right to copy.” The protection is to make sure the right people get paid, but the underlying principle is that the work has to get out sometime. Royalties were originally paid to the Crown (as they are for mineral rights). The very regal Big Content owners would like to maximize their royalties.
Along comes the Web: easy copying, instant distribution. Big scare for Big Content. When the DMCA was being promulgated, many following the proposed legislation (including its drafters and committees) were happy with its components and its passage. The “Safe Harbor” provision codified in the sections known as the Online Copyright Infringement Liability Limitation Act (OCILLA), part of the DMCA, has allowed content providers a liability shield from users uploading copyrighted material, provided that the DMCA notice-and-takedown provision is followed.
Because the DMCA writ large was mainly a codification of World Intellectual Property Organization (WIPO) treaties, aligning the rest of the world to the US copyright regime, much of the commentary and chatter at the time was about the “anti-circumvention” provisions of Title I. The battles around intellectual property rights and protections, and the “IP Piracy Wars” generally, were mainly being waged around devices. The compromise for bulletin boards, search engines, and universities and libraries to allow them to stay open for business despite their users being a bit frisky by putting up putatively copyrighted works without permission.
Thus OCILLA, which created today’s safe harbors for online service providers like AOL, Compuserve, universities, etc., were safe harbors precisely premised on the regime we now call “notice and takedown.” Since the service provider, search engine, or other website is not, under notice and takedown, responsible for putting up the allegedly infringing content (that onus falls on those who upload it), the service provider/”safe harborer” is shielded from liability so long as they respect bona fide takedown notices received from the rights holders (usually its the big ones who fire first).
Big rights holders, including members of the RIAA, MPAA, Disneys and Nikes and Warner Bros. and the like, would very much like to live in a world where they can shoot to kill first, and ask questions later. That is, they would prefer a legal regime akin to the Castle Doctrine of criminal defense, wherein, as soon as an owner detects a boundary violation or unlawful intrusion, the intruder on said property has put themselves at risk of owners’ “deadly force.”
These rights holders see their intellectual property as being like their homes—even if they are not the actual authors, but just the holders of the rights thereto. All of the people wanting to see and hear the works, which is presumably the nature of their value and the general reason they were created in the first place, are seen as intruders into their homes when they do not pay as directed. The studios and record labels say “Make My Day,” in reference to Sudden Impact starring Clint Eastwood as a loose cannon San Francisco cop. Essentially, the message is “you put up our copyrighted content, now we can use ‘deadly’ legal force to make you take it down.” They don’t like the burdens “notice and takedown” impose upon them, or the freedoms it gives users to put things up without fear of liability, so long as someone somewhat promptly honors the takedown.
The deadly legal force to be used varies with each successive introduction of an Act or modification thereof, but generally the notion of SOPA is that the takedown would be a shutdown. Entrenched Castle-dwellers pour hot oil, unleash their flaming arrows, chuck their spears, and fire their cannons, and they therefore keep the world safe from piracy.
US rights holders are granted a monopoly (albeit a limited monopoly) in the form of copyright or trademark protection. Copyright law requires private enforcement of rights. Your works are your Castle. Big Content (“BC”) wants to maximize the value of its rights, and extract maximum rents (as viewers/listeners are only licensed to see and hear a work, and usually never own any rights beyond that seeing and hearing, often at their leisure, say if they bought the CD or DVD). BC does not want to go through arduous processes of issuing notices to service providers and search engines and blogs that infringing contents have found their way on to the screens and speakers of American consumers. They also have no recourse to stop the service providers.
House IP Subcommittee Chairman Bob Goodlatte makes clear what SOPA is really about
“Intellectual property is one of America’s chief job creators and competitive advantages in the global marketplace, yet American inventors, authors, and entrepreneurs have been forced to stand by and watch as their works are stolen by foreign infringers beyond the reach of current U.S. laws. This legislation will update the laws to ensure that the economic incentives our Framers enshrined in the Constitution over 220 years ago - to encourage new writings, research, products and services - remain effective in the 21st Century’s global marketplace, which will create more American jobs. The bill will also protect consumers from dangerous counterfeit products, such as fake drugs, automobile parts and infant formula.”
But then he sort of “gives up the goose” (the Golden egg-laying kind):
"We're open to working with them on language to narrow (the bill's provisions), but I think it is unrealistic to think we're going to continue to rely on the DMCA notice-and-takedown provision," Goodlatte said. Yeah, Bob, we shall see who is being unrealistic.
This is what the “Goodlatte” battle is all about, a battle being waged by big copyright holders against “notice and takedown” as codified in the unanimously passed OCILLA in 1998. SOPA/PIPA, once called E-PARASITES Act, are said to be aimed squarely at “offshore piracy,” but the heart of their matter is repealing OCILLA. And that, my friends, is probably why even Microsoft, albeit quietly, opposes SOPA.
The bill hasn’t changed.The politics, of course, will. Neither SOPA nor its Senate companion PIPA are about jobs, or protecting the troops. The Business Software Alliance, as hawkish as they come with regards to “protecting” IP rights, recently pulled its (early and often) support for SOPA http://www.washingtonpost.com/blogs/post-tech/post/tech-coalition-backs-off-sopa-support/2011/11/22/gIQAAp95kN_blog.html
Ars Technica recently discussed the proposal with Ryan Radia of the Competitive Enterprise Institute, a libertarian think tank. Ryan’s been actively engaged in this year's copyright debates on Capitol Hill, and he argued that the sweeping language of SOPA was specifically designed to undermine the safe harbor provisions of the Digital Millennium Copyright Act.
Cnet’s Larry Downes also gets this right:
“In the absence of legitimate, appropriately-priced alternatives, consumers always create their own channels and invent their own services. Often, it must be said, those alternatives violate copyright and trademark. Along the way, consumers and others who dare to test new services and new devices are punished harshly, only to be replaced by more resilient successors. Napster is gone, but iTunes thrives.
“But the solution isn't to strengthen the law, choking off innovation. The solution is to give consumers what they want, which Hollywood always, if begrudgingly, figures out how to do.
“If parasitic foreign Web sites are truly costing the U.S. economy significant losses (a claim made regularly by content industries but without credible data to back it up), then the best use of government resources is not to surgically remove hyperlinks and DNS table entries. Rather, we should step up the pressure on foreign governments to enforce their own laws and international treaties extending U.S. protections abroad.”
http://www.cdt.org/protect-ip-act David Sohn
Techdirt, which has devoted a lot of online real estate arguing against SOPA and PIPA, first gets definitive on why SOPA’s a no-go:
And earlier, they weighed in on the bill’s doublespeak:
One commentator in favor of SOPA/PIPA is Scott Cleland, who is bought and paid for by ATT
But even ATT no longer supports SOPA as drafted, saying through a senior executive:
Tim McKone, AT&T's executive vice president of federal relations, told CNET last week that "we have been supportive of the general framework" of Protect IP. But when it comes to SOPA, all AT&T would say is that it is "working constructively with Chairman Smith and others toward a similar end in the House."
Here’s a response to ATT-backed Scott Cleland:
“Please, spare us your simplistic attempt to reduce this all to a ‘political clash between pro-IP forces and anti-IP forces.’ There certainly are leftist groups criticizing the bill who never met a copyright law they liked; some might go so far as to defend clear examples of piracy. I certainly would not. My message on copyright is the same as my message on all attempts to regulate the Internet: Congress should (1) identify clear harms, (2) look for narrowly tailored solutions, (3) ask whether the regulation’s benefits outweigh its costs, considering its likely unintended consequences, and (4) focus on finding the least-restrictive solutions available.”
Meanwhile over at the self-proclaimed “grassroots” organization funded by Big Copyright: http://creativeamerica.org/home/about/
But they’re not really grassroots (or, grassroots my assroots):
And there, my friends, is the key to what this proposed legislation is all about.Not “protecting the troops.” (Seriously, a couple of rather cynical Congressmen make that argument. As though the rhetoric wasn’t already notched up ridiculously high. Almost like they beat Saturday Night Live to the punch….).
But now they're simply attaching things that have absolutely nothing to do with SOPA to SOPA... such as claiming that it "protects the troops." That link is to a PDF of a letter sent by Smith and Conyers to their colleagues in Congress, with the headline:
Promote Jobs and Economic Growth: Protect Consumers and Our Troops - Support H.R. 3261
We all know piracy is bad.
And online overseas pirates are allegedly the scourge of the present and the future, endangering US economies and citizens. But at the end of the day, this is a bid by rightsholders to flip the notice-and-takedown regime of the DMCA into a shoot first, shut down, and then ask questions later regime. It’s a bad bill, SOPA.
"Anybody who is involved in providing services on the Internet would be expected to do some things. But we are very open to tweaking the language to ensure we don't impose extraordinary burdens on legitimate companies as long as they aren't the primary purveyors" of pirated content, he said. Yeah, that’s what the rhetoric is. But this is not really about “overseas pirates.” There are ways to fix that, like forcing China to enforce IP rules as part of our trade with them. This is about notice and takedown. Roll back DMCA.
We have to ask, is IP piracy really killing content?
The way intellectual property rights have worked in the US since the drafting of the Constitution, is pretty much as follows: a technology comes along, such as the printing press. We have a stated goal: promoting the progress of the science and useful arts, and furthering the freedoms embedded in the Constitution, including the freedoms of speech (and the right to disseminate ideas broadly into the marketplace), the freedoms to be heard and to gather and to connect with fellow Americans for the purpose of exchanging ideas, political views, art, and entertainment. When the Net exploded in the ‘90’s, it was clear that there would need to be a new copyright regime to protect nascent, burgeoning technologies that allows for greater connection (& connectivity), faster distribution, broader reach, more interactivity, and sharing (of ideas, works, progress writ large).
Because we have to ask, is IP piracy really killing content? I know it may change the ways in which the Big Content owners earn, but is it killing their business?
Because, the hyperbole wars (en fuego delicte) make it sound like it is the end of the world, and not a business model battle.
“Unfortunately, SOPA/PROTECT IP actually makes it much harder and much more expensive to develop the next generation of platforms that will help to solve the business problem the entertainment industry faces. The main "enforcement" mechanism in these bills is to put liability on third party service providers coming from the tech industry, undermining the safe harbors of the DMCA and the legal framework that has allowed tons of important internet platforms to evolve. It makes it so that next generation of Spotifys and Netflixes can't even get started. The liability and the risk is much higher. Rather than two guys in a garage coming up with the next great thing, they need two guys and a dozen lawyers. That makes the garage crowded. And expensive. And it means the venture capitalists, who fund innovation, will be a lot less likely to invest.
“The end result of attacking a business problem as if it were a legal problem is that it leads to attacking the key thing that the entertainment industry needs to deal with the problem created by piracy. In other words, by misunderstanding the nature of the problem, the entertainment industry is (yet again) aiming the weapons that the tech industry has given them right at their own feet.”
As so often happens when a bill is aimed at one things, but pretends to be about another, the rhetoric ratchets up (going from “almost peaked” to “crescendo”)…
The rhetoric on both sides of the debate concerning the Stop Online Piracy Act almost peaked when Rep. Zoe Lofgren (D-Calif.) said the House proposal “would mean the end of the internet as we know it.” Weeks after the Silicon Valley representative’s comments, the vitriol reached a crescendo Wednesday during the measure’s first hearing before the House Judiciary Committee, when Registrar of Copyrights Maria Pallante testified the U.S. copyright system would “fail” if Congress does not take action.
“The rhetoric around this bill is over the top,” said Rep. Howard Berman, the California Democrat whose district includes Hollywood.
And finally, where the RIAA (an outfit known for going “over the top” on occasion) fits in to this whole equation:
It’s a “full-on assault” against lawful United States Internet companies (or at least, the notice-and-take-down regime they have been riding to glory for the past decade plus).
Verizon goes against the Bill (albeit anonymously) on a technicality (or, technicalities): The House proposal came about suddenly, critics say, and without consultation from high-tech and telecommunications firms.
“Inexplicably, and almost overnight, SOPA has morphed into a full-on assault against lawful U.S. Internet companies,” said Markham C. Erickson, executive director of NetCoalition, a group representing Web firms and public interest groups opposed to the law. “This makes no sense to us, nor will it to the millions of Internet users who depend on it for communications, commerce and democracy.”
A Verizon executive said in an interview Wednesday that the bill puts too much of the burden on Internet service providers to create new technologies to monitor and stop illegal consumer use of Web content.
“We have a number of concerns with the bill,” said the [Verizon] executive, who spoke on the condition of anonymity because of the sensitive nature of the legislative push. “And we have been shut out of the process in writing this, even though it is very technical and requires us to use a range of technically difficult things to enforce this legislation.”
And wait: breaking hyperbole—turns out SOPA will negatively impact us cyber-security if it passes. My word@!
Add the Sandia National Laboratories, part of the U.S. Department of Energy, to the list of opponents of a controversial Hollywood-backed copyright bill.
Leonard Napolitano, Sandia's director of computer sciences and information systems, warned in a letter that the legislation is "unlikely to be effective" and will "negatively impact U.S. and global cybersecurity and Internet functionality."
Not that we don’t love Declan McCullagh!Go Declan! Captain protect America from lurking cyber-threats man...!
And here’s one more for the road, just because we love the word “hacktivism.”
The scholars I respect the most are ALL against SOPA and PIPA:
There is reasonable debate as to whether or not this level of censorship goes violates the First Amendment. Constitutional scholar Laurence Tribe has argued that it does violate the First Amendment. Well over 100 of the country's top legal scholars have made the same argument. Arguing on the other side is well respected First Amendment lawyer Floyd Abrams... but even he admits that under SOPA and PIPA protected speech would get censored. He just deems that as acceptable collateral damage, as being merely "incidental." We can argue over whether or not it really is incidental, as we've already seen actions against sites under current law that seek to stifle large amounts of protected speech outside of any infringement.”