Stopping Online Piracy: 5 Internet Injustices of #SOPA Bill

Democratic Congressmember, Zoe Lofgren, represents a constituency in central California that includes parts of San Jose and the Silicon Valley. In late October 2011, after some of her colleagues in the US House of Representatives, led by Congressmember and Chairman of the House Judiciary Committee Lamar Smith of Texas, introduced a bill called the Stop Online Piracy Act [SOPA], Ms. Lofgren declared her opposition to the proposals as “the end of the Internet as we know it.”

SOPA, sometimes known as E-PARASITE [Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation], is the House’s equivalent of the Senate’s PROTECT-IP [Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property] bill, in that both are meant to put a stop to websites that carry content that infringes on copyrights, combined with Senate Bill 978, which would criminalize online streaming even of people who sing others’ songs on YouTube. Whatever kind of anti-online piracy legislation gets passed, there is the thinking that it could do more harm than whatever good may come of it. How so? Let us count some of the ways:

1. No due process.

Under the proposals, any copyright holder can get a court order to shut down a website that posts any infringing material without giving the accused website an opportunity to challenge such a shutdown in court. On top of that, the owner of such a website could even be denied Internet access…again, without due process.

2.  Guilt by association.

Prof. Mark Lemley of Stanford told the public radio program “Marketplace” that if you so much as put up a link to a website that carries the infringed copyright material, you’ll end up just as guilty of “facilitating infringement” as the website that infringes copyright. Even Google, Twitter, Facebook and YouTube could be all but put out of business as a result.

3.  What constitutes a ‘copyright infringement’?

David Sohn of the Center for Democracy & Technology commented that under SOPA, “a central issue is that the bill’s definitions of bad websites are vague and broad.” So much so that the Future of Music Coalition commented that even legitimate sites, both within and outside of the US, could be held for violations of SOPA, thus making the Internet “too wide for comfort.” On top of that, copyright owners, by filing a court order against an infringing website, don’t have to go to court and explain their actions, which adds to there being no opportunity at justice for the accused.

4.  ‘Fair Use’ is no excuse, and neither is ignorance.

Provisions in copyright law that apply “fair use” for generally nonprofit purposes would not count under some of these proposals. For example, under PROTECT-IP, it would be a felony to show 10 or more public performances online in any 180-day period. And that means everyone from Justin Bieber on down who has sung someone else’s songs on YouTube over the last few years could end up being imprisoned.

Also, as the Future of Music Coalition further commented, the “safe harbor” provisions under the Digital Millenium Copyright Act would be rendered moot under SOPA, so that any website which infringes on a copyright can be caught even if the site’s proprietors don’t know that they have committed such.

5.  The ‘Great Firewall of America.’

According to Mike Masnick of Techdirt, passage of such proposals, particularly SOPA, would not only violate the First Amendment of the US Constitution, as well as contradict official US positions on censorship and Internet freedom, but would, given what’s already been described, also create this “Great Firewall of America,” which makes one wonder if the US is going to end up just like Communist China from a Net Censorship standpoint.

The perception is that proposals like these are being run through Congress with the help of “Big Content,” particularly the motion picture and recorded music industries that are seeing their businesses disrupted by the Internet. This is kind of like what would have happened had the horse-drawn carriage industry of the late 19th century lobbied Congress to prohibit automobiles rather than adapt or die.

In his “open letter” to former US Senator from Connecticut, Chris Dodd, who now runs one of those “Big Content” lobbies, the Motion Picture Association of America, the aforementioned Mike Masnick of Techdirt wrote that many in the tech industry were denied an opportunity to discuss the proposals and offer their opinions, and that:

“….A bill like SOPA creates so much liability that it would be impossible for two engineers in a garage to build the next great startup unless they also had a dozen lawyers sitting with them. We can’t help the artists and creators who were in our group with the new platforms they rely on, if these new innovative startups don’t even bother starting. We can’t help the users and participants who want new and convenient and legitimate access to content, as well as ways to make their own content…”

Far be it for me to think whether SOPA would do more harm to the general public than good for the copyright owners, but I wouldn’t be surprised if it ends up that way. And because the Internet and technology have been two of the few bright spots in a declining US labor market, it also wouldn’t surprise me if, barring a court challenge, passage of laws like these could lead to more people being put out of work, to say nothing of how it would clog up the courts and prisons.

So either Congressmember Lofgren is right that SOPA will mean the end of the Internet as we know it, leading to a potentially volatile situation where almost everyone is guilty, or perhaps it could encourage sites and their proprietors to be more creative by coming up with new and original works. Stopping online piracy is one thing, but creating new criminals where none existed before is another.

Do you think SOPA and PROTECT-IP could lead to injustice on the Internet?