What’s Up With SOPA?, Part II

Direct Continuation of: What’s Up With SOPA, Part I

A Related Summary of this Essay: The TL;DR Version of SOPA Opposition

So thanks to everyone’s favourite planning fallacy coupled with first-world setbacks, I spent more weeks of this blog on SOPA than I wanted to. The good news is that the first part of this essay does lay out the bulk of the detail on SOPA, and that this part will just answer some related questions and resolve some ancillary issues, and tie the case back together.

So you could probably skip this essay without much consequence to reasoning to oppose SOPA, but I do want to target arguments against SOPA that I don’t think actually fly — such as the allegations that SOPA is censorship — and also create a call to action. Sorry that this isn’t as timely as it originally was going to be, but it’s still good stuff.

 

A Summary of the Case So Far

So what did we arrive at in Part 1? First I explained how copyright works on the internet and how SOPA would change the scope of copyright. While I went into a bunch of detail in the first part and into some detail in the TL;DR version, here are the basic points you need to know:

  • Everything on the internet is automatically copyrighted as soon as it is published.
  • If you intentionally break copyright by publishing the works of another person, you are liable for criminal punishment under the Digital Millenium Copyright Act (DMCA)
  • The large majority of copyright violations are unintentional, as many sites that allow user content have users that misuse this to upload copyrighted works.
  • DMCA provides every company with a way to order websites to take-down copyrighted works that the site unintentionally hosts.
  • Provided sites comply with every take-down request and show no indication of intentionally encouraging copyright violation, they are called “safe harbors” by the DMCA and will never be punished, even for regular unintentional violation.
  • SOPA would significantly weaken this “safe harbor” provision and make sites responsible for preventing copyright violations rather than wait for take-down requests.
  • SOPA would also significantly expand what the courts can order people to do to combat piracy — especially foreign pirate websites outside their personal jurisdiction — such as ordering search engines to delist offending websites, ordering sites like PayPal to stop processing money orders to infringing sites, and ordering the domain name for sites to be disconnected.

After explaining how copyright on the internet works and how SOPA would change the scope of this copyright, I arrived at three main arguments that SOPA would create more problems than it would solve:

  • SOPA Places an Unfair Burden on Websites: Given that everything is copyrighted when published, it is exceedingly difficult to detect copyright violations — especially in images or video. Thus SOPA’s mandate for all sites to prevent violations from occurring is at worst impossible and at best financially infeasible. It also may place an unfair burden on DNS servers — Allan A. Friedman of Brookings and Paul Vixie of ACMQueue both have pretty lucid explanations — though I am less certain about this.
  • SOPA Will Not Stop Much Intellectual Theft: All sites exist as an IP address (like 124.132.160.900) that you are directed to when you access a connected domain name (like www.example.com). SOPA attempts to combat foreign pirate sites by breaking this connection. However, it is trivial to just access the IP address directly, which SOPA cannot stop.
  • SOPA Is Ripe for Abuse: SOPA contains vague language which makes it confusing as to what companies can or cannot seek the government to do on their behalf. And given that companies in the past have done their best to take advantage of vague language in current bills, there is a strong historical indication that they will do so again if SOPA passes.

 

 

What About MegaUpload?

Oddly enough, on January 19, the very day after SOPA was being protested in a massive blackout, MegaUpload.com. They seized all of the file servers, seized the domain name, and arrested many of the people involved with the site on the accusation that they were a website dedicated to intellectual theft.

The most important thing to note about this case is that it actually has nothing to do with SOPA. Instead, it is a straight-forward application of the DMCA. However, the existence and process of this takedown has big implications for how we should think about SOPA.

 

Many people have already cried foul for the removal of their favourite storage spot for files, and could legitimately do so since the majority of MegaUpload users were not using it for the storage of pirated materials. However, if you read the ruling the site was taken down for doing quite a variety of illegal things.

Yes, MegaUpload did have a lot of copyrighted material on it — pretty much any movie or television show could be accessed on it. But under the DMCA, that’s not enough because they could easily meet the “safe harbor” standard. But they didn’t, given that they repeatedly refused to cooperate with DMCA take-down requests, or barely cooperated with them by taking down links to the copyrighted material but still retaining the material on their servers and left some other links to the material intact so that everyone could still download it. In addition, the owners openly bragged about their large access to copyrighted material. They even went as far as to copy millions YouTube videos to MegaUpload to bootstrap their MegaVideo service.

In fact, the entire business model on the site was based on profitting from the uploading of copyrighted material — the site was ad funded, which meant that the site relied on maximizing their downloads, so they chose to reward people for uploading files that were the most downloaded and kept only the most downloaded files on their site for prolonged periods of time. Since the copyrighted material was the most frequently downloaded, the owners of the site made no attempt to comply with take down requests since it would make them lose out on profits.

 

But here’s the key point: MegaUpload is exactly the kind of site that SOPA is designed to take down, yet it was successfully taken down with the DMCA. The site was internationally based and the owners were arrested in New Zealand, but thanks to cooperative treaties between several governments, the arrest was made without any violation of sovereignty. Additionally, it was well within US jurisdiction because the domain name and several servers were based in Virginia. (This is exactly why The Pirate Bay changed from .org to .se, to move themselves outside US jurisdiction.) Though the ability to indite foreign nationals based on tenous connections is not without some doubt, it seems like this is a straightforward and largely legitimate use of the DMCA.

So what could SOPA do differently if it were passed? Foreign sites could easily move outside US jurisdiction, as The Pirate Bay just did. This is precisely why SOPA aims to give authority to order US search engines (pretty close to all of them) to delist websites like The Pirate Bay and disconnect their domain name. But as we pointed out, this won’t do nearly anything to stop people from accessing the Pirate Bay, nor will it stop their operations, and instead just saddle websites with the inconvenience of keeping up with a complete list of all sites that contain copyrighted material.

The MegaUpload case seems to take out even more wind from the pro-SOPA argument.

 

 

What About Claims That Other Countries Will Follow Suit?

Another issue raised about SOPA is that other countries will follow suit and create their own laws similar to SOPA should SOPA pass in the US. There is indeed strong indication that other countries are considering their own bills that combat piracy in a similar vein — there is talk of bringing the DNS-delisting part of SOPA to Canada’s C-11 Bill and the pending Anti-Counterfeiting Trade Agreement seems to have both the DNS-delisting and the website-burden aspects of SOPA to it, perhaps even making all P2P networks illegal.

While these bills do show a growing sign that SOPA is not just in the US and that this conversation does need to take place internationally (and not just in private rooms either!), there is really no indication that SOPA’s passage will make either of these bills more or less likely. In fact, I’m unconvinced here — the strong opposition to SOPA has not done much to stop many of these bills. That gives a bit too much credit to the US.

The argument here should thus not be “Stop SOPA in order to end all these other harmful bills”, but “Stop SOPA and all these other bills because they are all harmful”.

 

 

What About These Claims of Censorship?

This claim about SOPA is by far the most common argument against it, but I don’t think it is one of the strongest. I would much rather make a case on the basis of the unfair burden, the strong potential for abuse, and the fact that SOPA actually won’t accomplish all that much for the fuss. But what kind of merit does the censorship argument have?

Considered in it’s most naïve form “SOPA constitutes censorship because it orders the removal of sites from search engines and the removal of copyrighted material”, I don’t think it flies. I feel Alonzo Fyfe puts it well:

There is a component of the bill that blocks communication. However, the communication being blocked is material that has copyright protection. We have always had limits on reproducing copyright material – and we have never called it censorship. To count as censorship, material has to be blocked because of the message it contains.

I do disagree with Fyfe a little, though — I think this bill does censor things. The bill does allow the government to order sites to say “You are not allowed to display this”, pointing to copyrighted material or a link to a website that contains copyrighted material. However, this kind of censorship is not the censorship that we actually don’t like, thus this argument rests on smuggled connotations.

Instead, SOPA censors the same kind of material as the DMCA — copyrighted material. It is acceptable to censor unauthorized reproductions of copyrighted material specifically because such material is illegal, just as it is perfectly acceptable to censor child pornography or detailed instructions on how to kill people. Sure SOPA can get out of hand (this site contains a link to a link to a link to copyrighted material, ya know), but it isn’t objectionable on the basis of censorship. It is objectionable on the basis of getting out hand.

 

But we can consider this argument in its most sophisticated form: “SOPA constitutes censorship because it orders the removal of sites from search engines and the removal of copyrighted material without going through a court first“. As argued in Harvard Constitutional Law Professor Laurence Tribe’s letter:

The notice-and-termination procedure of Section 103(a) runs afoul of the “prior restraint” doctrine, because it delegates to a private party the power to suppress speech without prior notice and a judicial hearing. This provision of the bill would give complaining parties the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice accusing the site of being “dedicated to theft of U.S. property” – even if no court has actually found any infringement.

The Supreme Court has made clear that “only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression [and] only a procedure requiring a judicial determination suffices to impose a valid final restraint.” Freedman v. Maryland, 380 U.S. 51, 58 (1965). Thus, in Fort Wayne Books v. Indiana, 489 U.S. 46 (1989), the Court held that even a finding of probable cause by a state court was not sufficient to allow seizure of material “presumptively protected by the First Amendment,” because the state court’s ruling was merely preliminary.

Thus parts of SOPA authorize actions against sites without a full court hearing, giving the defendant a chance to defend his or her operation before it is permanently shut down. And given the abuse we talked about earlier, this could be employed to seriously inconvenience competitors even if they are ultimately cleared. So the constitutional argument is not that the bill contains unfair censorship, but the bill contains an unfair breach of due process.

One last comment has to be made to finish this discussion: SOPA does include the language “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”. However, as Tribe points out: “proclaiming the bill to be constitutional does not make it so [...] At the same time, the proviso may have the unintended effect of rendering large swaths of the bill inoperative. For it is difficult to understand how the provisions discussed above would operate except as impermissible prior restraint.”

 

 

Conclusion

So there you have it: a full investigation of the facts reveals many reasons to oppose SOPA — the case was even stronger than I predicted going in, and I have personally become even more opposed through my research. In summary, here are five reasons to oppose SOPA:

  • SOPA Places an Unfair Burden on Websites: Given that everything is copyrighted when published, it is exceedingly difficult to detect copyright violations — especially in images or video. Thus SOPA’s mandate for all sites to prevent violations from occurring is at worst impossible and at best financially infeasible. It also may place an unfair burden on DNS servers — Allan A. Friedman of Brookings and Paul Vixie of ACMQueue both have pretty lucid explanations — though I am less certain about this.
  • SOPA Will Not Stop Much Intellectual Theft: All sites exist as an IP address (like 124.132.160.900) that you are directed to when you access a connected domain name (like www.example.com). SOPA attempts to combat foreign pirate sites by breaking this connection. However, it is trivial to just access the IP address directly, which SOPA cannot stop.
  • SOPA Is Ripe for Abuse: SOPA contains vague language which makes it confusing as to what companies can or cannot seek the government to do on their behalf. And given that companies in the past have done their best to take advantage of vague language in current bills, there is a strong historical indication that they will do so again if SOPA passes.
  • The MegaUpload Case Makes SOPA Mostly Unnecessary: MegaUpload was the exact kind of site that SOPA was suggested to take down — a largely foreign operated site that directly profits off of copyrighted material. Yet it could be taken down through the application of the DMCA and foreign treaties. SOPA couldn’t do much more than this even if it passed, so why do we need it and the harm it would bring?
  • SOPA Contains Elements of Unconstitutional Prior Restraint: Provisions of SOPA can be enacted to allow a site to be taken down or have financial connections of that site severed without a court order. This represents everything the DMCA tried to avoid with the safe harbor provision and other criteria, and runs foul with the current case law.

 

Knowing this, what is the state of SOPA now? What can be done to oppose it? And how can this issue of intellectual theft be resolved? For concluding thoughts, I would like to briefly touch on these questions:

What is the current state of SOPA now? SOPA has been shelved — after the massive protest, SOPA lost a lot of support from congresspeople who saw staunch opposition and their very jobs on the line. Thus SOPA does not need much more opposition — but bills like it do! We need to stop ACTA, for example.

How do we stop ACTA? While a little over the top as most advocacy sites are, I’ll let stopp-acta.info take over from here.

How to Solve Intellectual Theft? I bet you didn’t expect me to answer this question in a quick paragraph, and I definitely won’t be able to. I think this question needs to be thoroughly looked into and heavily analyzed — there isn’t even a consensus that intellectual theft is actually a problem, let alone a plan on how to make the structural changes to fix the issue. Nearly everyone agrees there needs to be some sort of reform of copyright law, but what kind of reform? Right now, I would suggest keep using the DMCA to take down sites like MegaUpload as best as possible. Maybe this bipartisan compromise will work out, but I’m skeptical that SOPA can be modified into something supportable, even if this one actually… y’know… goes through the courts.

Well, the end! Go out there and critically analyze some legislation!

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I now blog at EverydayUtilitarian.com. I hope you'll join me at my new blog! This page has been left as an archive.

On 3 Feb 2012 in All, Political Commentary. No Comments.

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