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SOPA and PIPA; Are They Really That Bad?

I always thought SOPA was something you ate in a restaurant and PIPA was a character in Astrid Lindgren’s children’s book series. 🙂

The real problem is obvious: these Bills are grossly overbroad

But seriously, SOPA and PIPA, if you aren’t aware already, are Congress’ (House and Senate, respectively) newest “attempts” at regulating the internet. Their articulated purpose is to give the U.S. Department of Justice (DOJ) and Courts power to curb so-called “internet piracy.” In my view, the articulated problem is real and the desire to address it is understandable.  The internet is “the wild, wild, West” on steroids.  “Policing” it is a near-impossibility.  My concern is their motivations and methods.

So, are SOPA and PIPA really that bad? In a word, yes.  The real problem is obvious: These bills are grossly overbroad.  Indeed it has been argued that they not even necessary; that the tools are already available for law enforcement and courts to address these issues (the recent arrest of the founder of “Megaupload,” another anonymous and “free” file-sharing service, appears to bolster this latter argument, and make the claims of needed legislation by the Congressional sponsors and supporters of these two bills seem inconsistent with reality).

The articulated problem for this legislation is copyright infringement and internet “piracy.” Much of this “piracy” activity is conducted from sites situated outside the United States. Congress apparently believes that there is no U.S. jurisdiction or authority over these sources. But their proposed solution is not narrowly—indeed not even reasonably—drafted to address the specific problem. Since there are (among others) First Amendment issues at stake here, our Constitution requires that such legislation be narrowly drawn to meet the specific “wrong” articulated, and that it consider whether other, less restrictive, alternatives are possible. I do not think either of these bills pass muster under that standard.

SOPA and PIPA place the burden to “watchdog,” discover, and shut down users who are in violation of its terms on Internet Service Providers and Search Engines

SOPA and PIPA versions which Congress hoped to schedule for a vote in January, include provisions which would DOJ to target and hold Internet Service Providers, Internet Search Engines, Internet Advertising Services and Payment Facilitation Sites like PayPal and MasterCard accountable by forcing them to shut down their services for websites and providers that are deemed to be infringing on intellectual property rights (primarily copyright).  They also impose substantial “oversight” responsibility on internet service providers and search engines over their users—essentially placing the burden on the providers to “watchdog,” discover, and shut down users who are in violation of these new laws.

The trouble with this approach is that it doesn’t effectively reach and deal with the actual wrongdoer. The targeted entities are rarely, if ever, intentionally complicit with the wrongdoers. Yet they are being made responsible for policing them. The practical effect of this is that they may ultimately discontinue, or limit their services because of the burdens this legislation places on them. And it is certainly not clear that this legislation will have its intended effect.

Should my internet service provider, blog hosting service, or search engines that crawl my websites be responsible to find and police this conduct? Absolutely not!

The economic impact on these providers is unfathomable. Nor does it make any sense  to hold these entities responsible to determine whether a subscriber is in violation. How, for example, should service providers and search engines address issues like “fair use,” or for that matter, “innocent” violations. I recently had a “pingback” here from someone who had linked to my site. She thought she was doing me a favor—and she was—by favorably linking to my blog and a particular image. But she also put my image up on her own blog (not a link to my image, but a copy of the image). I politely informed her that she did not have permission to post a copy of my image.   She apologized immediately and took it down. Should she be held criminally liable under the federal laws cited in SOPA? I think that would be Draconian. Should my internet service provider, blog hosting service, or search engines that crawl my websites be responsible to find and police this conduct? Absolutely not!

The proposed law also appears to be fundamentally inconsistent with the goals of the existing, Digital Millennium Copyright Act, which contains “Safe Harbor” provisions for internet service providers, in effect shifting the burden of “watchdog” to the holders of the copyright (which maybe is where it should be), for the providers. If a violation occurs, the provider is not liable for it under the DMCA until they become aware of it. Usually that will happen because some third party (normally the holder of the right) notifies the provider. At that point, the provider has certain “takedown” procedures they must follow. But it seems fundamentally unfair to put essentially the entire burden on the provider, and that is what SOPA and PIPA appear to do. And they appear to give the U.S. government law enforcement and private copyright holders, power to police the unauthorized activity in a heavy-handed way (e.g., by a “takedown of an entire website because of an infringement). Imagine the impact that could have on a site like Flickr or Picassa!

SOPA also gives the power to enforce its terms exclusively to the U.S. Department of Justice (DOJ) and the courts. Coupled with the breadth of this legislation, too much power to affect the entire internet is concentrated in the hands of this single central government agency.

Surgery requires a scalpel; not a meat cleaver

Because of the influence of web-based media (website banners, e-mail, Facebook and Twitter) a large and substantial public voice has made itself heard with the supporters of these Bills. The original sponsor, of SOPA withdrew it for further consideration of some of the issues raised by opponents. Likewise, the PIPA sponsors have called for re-consideration of that legislation in light of the issues.

In my view, this whole fiasco is indicative of a more fundamental concern: the way we address policy problems in our nation today. The sides appear to be completely divided and niceties like analysis of facts, compromise, and diplomacy have been discarded in favor of (to borrow a term from the sports world) “smash-mouth” advocacy. Late Friday and early Saturday, the internet and other news sources have splashed “SOPA Defeated” and “SOPA is Dead” headlines, with near-gleeful accounts of how the forces that came together on the internet won and truth and light prevailed.

Compromise and diplomacy have been discarded in favor of “smash mouth” advocacy

Let’s not fool ourselves. There are “special interests” on both sides. And, no, SOPA and PIPA are not “dead.” Indeed, news sources report that there are hearings scheduled yet this month and while some of the provisions that were deemed “bad” by opponents of the legislation have been removed, or changes, the opponents are still not completely satisfied. At the same time, the reasonable voice in my head says that just maybe, there is some justification for continuing to look at the problem and appropriate solutions for it. Copyright violations and so-called “piracy” are real, and they result in real economic damage. The question is whether the proposed legislation truly addresses and resolves that problem in a meaningful way. And then, even if it does, is it too broad and heavy-handed. Surgery in modern days requires a scalpel (or even more precise instrument); not a meat cleaver.

This is a photography and photographic topics/musings blog and this controversial post perhaps reaches a bit beyond its normal scope. However, I have posted on copyright topics before and I believe it is an important and vital topic for photographers. I’ll try to steer back toward less troubled and more photographic/artistic waters next week. As always, thanks for reading.

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2 Responses

  1. Good post, Andy. I agree with your conclusions almost to the letter. The problem that SOPA and PIPA allegedly address is a real one, but the bills (at least as originally written) took a sledgehammer approach to the issue. The law of unintended consequences is powerful and surely would have risen its head in a rather ugly manner, had these bills become law.

    That said, I think the strongest case you made (in a set of strong arguments) was in rejecting the notion that this was a black and white–rather than shades of gray–matter. We do seem to have a cultural-political imperative to view and deal with issues on that basis, even though it’s seldom–if ever–that cut and dried.

    • Kerry: Thanks again for your comments. For those of use who are directly impacted, it is an emotional issue, and I am not always sure I have articulated my views in a neutral manner. In our brave new “digital” world, the whole area of IP is both scary and fascinating.

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