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SOPA and PIPA: Why the Internet is Going Black

BY ARI EZRA WALDMAN

Upon your daily Internet search for pretty much anything, you may hit something like Google's modified blackout or Reddit's dark home screen that urge you to sign a petition because "SOPA and PIPA damage the Internet." A link on Google's home page will also urge you to sign the petition and tell you that the bills "would censor the Web and impose harmful regulations on American business."

StopsopaTowleroad has not gone dark, but, as Andy mentioned, you will see an interstitial that directs you to information on SOPA and PIPA, finds your Congressional representatives for you to reach out to, and allows you to share your displeasure on Twitter and Facebook.

Today is a day of protest, but a protest written in code, to bring attention to what many Internet companies see as two dangerous proposals in Congress: the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA). And, while there is an abundance of information and opinions out there about what these bills may do, we felt that Towleroad readers deserve an honest dissection of the issues.

CONTINUED, AFTER THE JUMP...

First, we have to be honest about the problem. Infringement of American copyrights not only affects those of us who create, but it affects all of us who enjoy the creations of others. Creators and innovators have been battling theft and copying of their works forever, but a medium as pervasive and cheap as the Internet poses unique problems that, some argue, traditional anti-piracy efforts cannot solve. How can you go after an infringer when he's anonymous, hidden behind an IP address or just really far away? How do punish websites whose sole purpose is to enable infringement when those websites can pop up anywhere, from Baltimore to Kuala Lumpur?

Congress's answer -- more accurately, the movie and music industries' lobbyists' answer -- is the SOPA-PIPA tandem. Ostensibly, these laws protect American copyright interests from foreign infringers and foreign websites that foster infringement. (For the purposes of this post, let's put to one side the differences between the two bills and focus on what they would do together if passed.) The bills do this by enhancing penalties and making it easier for the Department of Justice to shut down websites deemed a threat to American copyrights.

Let us assume the problem is real. The questions we have to ask ourselves are the following:

1. Is the current problem a problem of lax or inadequate enforcement? The Internet community says, No. Silicon Valley and its allies online would say that online copyright protection can work if copyright owners would simply innovate to accommodate the new technology, rather than try to fit square pegs into round holes. Technology no longer allows us to look an infringer in the face and see the fruits of his theft or copying with any permanency, and if technology allows for greater democracy in the sharing of music and television and other creations, owners of those copyrights should change with the times, offering content in a simple, user-friendly way that would obviate the need for infringement. Of course, the television, music, and movie industries -- which employ or help to employ millions of us -- would say that rogue websites are allowing individuals to escape their responsibility to pay for others' content and providing content at no cost is the only thing that would make infringers happy. Unfortunately, they say, it would bankrupt the industries.

2. Even assuming this is an enforcement problem, is increasing penalties and making it easier to identify infringing websites the way to solve the problem? Again, no, and this is where the devil is in the details of SOPA and PIPA. These bills offer wide discretion to law enforcement and grant extraordinary power to big movie, television, and music companies to identify websites they feel are threats to their copyrights. It is hard to argue the other side, even for a lawyer. SOPA and PIPA are so poorly written and so-one sided that, at a minimum, they need to be amended, but more likely, should be scrapped in favor of new bills, with precise words, clear goals, and balance -- an approach that Silicon Valley and Hollywood can rally behind.

Since the first issue is unresolvable in a post of this scope, I would like to focus on the dangerous enforcement mechanism of the proposed legislation. This alone is reason enough to support the anti-SOPA/PIPA petition and to call your representatives.

Here is a brief summary of how SOPA/PIPA would work:

We begin with entertainment companies like Disney, Viacom, EMI, or Bertelsmann having a good faith belief that Johnny Jughead is infringing their copyrights on his website, ilovecopyright.com. They can either come to this belief on their own, i.e., from their own regular scouring of the Internet for possible violations, or if a third party, i.e., you or I, send them a letter informing on Johnny.

Let's say Johnny likes to retransmit Yankee games without the express written consent of Major League Baseball and the New York Yankees, or he uses his own recording software to tape episodes of The Daily Show and posts them online. Given this good faith belief and some evidence of infringement, these companies can go to court or seek the help of the Department of Justice to get court orders issued to any payment processors or advertisers doing business with Johnny's website. Issuance of these court orders can be done ex parte, or, without Johnny or his lawyer present. The only way to rebut the presumption of infringement is to submit to US jurisdiction (a big deal for a foreign website!) and to offer evidence as to why you are not infringing. But, as discussed below, if Johnny uploads content or allows his users to upload content, it will be hard to prove he's outside SOPA's reach.

Similar injunctions are also sent to search engines, barring them from displaying his website in their lists of search results. So, given how often we come upon new websites through search engines, this injunction would effectively cut off most of Johnny's traffic. Then, court orders would be sent to Johnny's domain registrar forcing them to stop providing Johnny service, lest they be sued themselves.

All this doesn't sound too bad, assuming you recognize the problem of rogue websites maliciously infringing US copyrights. The image we might have in our head is a website from China, constantly stealing our movies, our songs, and other art, to sell or distribute on the cheap.

But, that website is not the only one captured under SOPA. Yes, think of Johnny's misdeeds and Chinese theft, but also think of YouTube, Twitter, Reddit, Facebook, and any other website with user-generated content, from comments on up. And, this is where the devastating breath of SOPA/PIPA come into full view.

SOPA allows the Justice Department to go after service providers, ad companies, payment providers, and search engines to shut down any foreign site it believes is infringing copyright. Never mind the power the Department is given over those ancillary tools, but it would allow the Department to choke off sites like Wikileaks.

It also appears to broaden the definition of an infringing website. Under SOPA, a site can be shut down if it "is primarily designed or operated for the purpose of offering services in a manner that enables or facilitates" copyright infringement. Websites that are "operated for the purpose of offering services in a manner than enables or facilities" infringement could be any site that allows its users to post content, like YouTube or Reddit.

Proponents say SOPA and PIPA are about capturing foreign infringers. If that was honestly the purpose, the drafting was either sloppy or a bad faith attempt on the part of copyright owners to hide a grossly unbalanced law behind a veil. The words are broad and undefined, too much power is given to copyright owners and large corporations that have the time and money to traffic the Internet or pay their lawyers to, and the mechanisms of control -- choking up websites by attacking ad sites, payment sites, and service providers -- turns intellectual property law into an octopus with hands in every pot in every corner of the web.

None of this suggests that the answer to the problem is to do nothing. If you believe copyright infringement is a problem -- many of us do! -- then we need to go back to square one to craft a bill that precisely captures foreign infringers without suffocating the Internet. There are a few ways to do this:

1. Differentiate between websites whose sole or overwhelming purpose is to facilitate infringement and those that only incidentally have a mechanism for infringement to occur. The former are bad actors, the latter is pretty much the rest of the Internet.

2. Encourage online service and content providers to be more vigilant about what goes on in their world. Willful blindness to ongoing infringement is morally equivalent to infringing yourself.

3. Create an online and copyright environment where infringement is unnecessary. Copyright owners need to innovate and provide content cheaply and easily. This, above all, will reduce infringement, as Apple's iTunes has shown. Internet companies need to foster social norms of responsibility and community, rather than adopt an attitude that the Internet is a bastion of unbridled freedom and lawlessness. That attitude not only contributes to rampant infringement under the guise of free speech, but fosters an online world where hate and harassment is ok. The Internet is not above the law any more than the law is there for the sole purpose of protecting EMI's and Viacom's business model. We're in this together, so let's write a new law together.

***

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

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Comments

  1. There is mounting empirical evidence that copyright and patents do not foster innovation (with the exception of pharma). In fact, lack of copyright and patent seems to encourage MUCH greater rates of innovation.

    The original copyright term passed by congress was 14 years, renewable for another 14. Today's copyright term of 90+ years is obscene and needs to be reigned in, at a minimum.

    Posted by: joe | Jan 18, 2012 3:03:31 PM


  2. Thank you so much for supporting this issue and explaining its pitfalls so clearly.

    Posted by: Darbari | Jan 18, 2012 3:07:10 PM


  3. Might I suggest that it's not only copyright infringement issues that are motivating the supporters of these bills, but the tendency of the internet itself to expose corporate and political corruption? And if they can get these bills passed, might it not give the corrupt a new curtain to hide behind when all they need is to find a legitimate reason under these broad new bills to shut a website down? I've been expecting to see something like this since about the middle of the last decade. :|

    Posted by: ophu | Jan 18, 2012 3:13:54 PM


  4. I have a question. If I post a youtube video of myself reciting a poem I wrote but my room has a poster of a movie, can the owner of the movie ask that my video be taken off because of copyright infringement?

    Posted by: baophac | Jan 18, 2012 3:21:56 PM


  5. About the clearest short primer I have seen; am sending others with questions here to read it.

    There is also the socalled vigilante provision which provides immunity to overzealous blockers of content as long as they can say they acted in "good faith." These good faith clauses can be used to justify anything, including searching the wrong house on a warrant.

    Posted by: melvin | Jan 18, 2012 3:29:17 PM


  6. I have no issue with fair use, commentary or satire or any of the other factors captured in the traditional copyright framework.

    I've spent 20 years mentoring and nurturing careers and opportunities in the entertainment field, across the world. Many of them gay kids trying to find an environment they can be themselves. Not necessarily be stars, but just have a solid job with good prospects. So this is personal.

    When I (and it's the same for colleagues around the world) have to go through another round of retrenchments or 'coaching' because the opportunities aren't what they used to be, it's gutting. On both sides.

    I see great kids who now look forward to being a waiter not a writer because it's still illegal to walk into a restaurant and steal food, unlike their shows or movies.

    In the extreme moments I'd wish those who steal these kids' dreams could spend some rough months in cell with a guy called Rocko, just as if they'd stolen a car.

    Posted by: J | Jan 18, 2012 4:27:59 PM


  7. IN PROTEST OF SOPA AND PIPA,
    WE HAVE MAYBE 12 hours TO BLACK OUT THE INTERNET!
    I MEAN THE WHOLE INTERNET, ALL OF IT!

    Can't be too difficult if every acted with a minimum of effort?

    BLACK OUT TO REESTABLISH AN ACTIVE CIVILIAN PRESENCE ON THE INTERNET!
    BLACK UP AGAINST CENSORSHIP AND UNLAWFUL INTRUSIONS!
    BLACK OUT AGAINST IT CORPORATE ABUSES!

    BLACK OUT IN A PRESENCE WHERE THE CORPORATE ELITE IS MEANINGLESS!

    I see an internet I want it painted BLACK
    BEFORE TODAY IS OVER, I want it painted BLACK
    I WANT NO THE PROFILE PHOTOS In their cheerful tones
    ON FACEBOOK AND GOOGLE PLUS
    PROFILES SHOULD BE BLACKED OUT!

    http://zito.biz/fuckyou/?p=2630
    http://templeofreason.org/news/?p=2787

    ██ ████████ ██████ ██████████ ██ ████ ██ ████ ██████████ ██. ███ ███ This comment has been found in violation of H.R. 3261, S.O.P.A and has been removed.

    Posted by: Andrew Stergiou | Jan 18, 2012 5:10:56 PM


  8. @J,

    This issue has nothing to do with the entertainment industry not paying artists their fair share. That's been an issue since the birth of the industry. Entertainment is far more profitable now than it ever was in the days of vinyl, film, and tape. If it weren't, then the industry would go back to those technologies and stop releasing new music, TV episodes, and movies on iTunes and Amazon.

    Your ridiculous sob story about piracy crushing the dreams of children is a fraud that melodramatic industry sharks tell the public to make us believe that we should give up our rights to pay for the entertainment industry's protection from a crime that somehow isn't rampant enough to drive them back to using vinyl.

    Posted by: JJ | Jan 18, 2012 5:33:28 PM


  9. I cant believe this has gone this far!!! why the hell have they just started to do all this?

    People have had the right to post and do what they like on the internet until now. The people want to concentrate on the more matters like war and the money crisis and stop bitching about the small petty stuff! :/

    Posted by: Stylezz | Jan 18, 2012 6:04:53 PM


  10. The idea here is to make the Internet something that requires permission to post to or use, re-establishing the middleman years of network TV and radio. Putting a gun to the head of YouTube so they will fork over billions to continue operating would suit HW just fine. They don't care that YouTube has their content. They just want to be able to ask any price for that content to be shown. Their great fear is that such easy distribution and a plethora of legitimately free content will drive the price of paid content to zero. You might want to call this the Make YouTube Pay bill.

    Posted by: anon | Jan 18, 2012 6:07:40 PM


  11. Andrew,

    I realize that you probably don't have a Sheldon Cooper IQ, but how does releasing on hard copy like vinyl prevent digital theft.

    If someone started coming into your work and 'downloading' burgers and fries, pretty soon your boss would be looking at ways to cut costs like staff overtime too.

    Posted by: J | Jan 18, 2012 6:39:07 PM


  12. There still needs to be a way to protect intellectual property and punish copyright infringement. Everyone is ignoring this factor in the argument.

    Posted by: Jazzy | Jan 18, 2012 7:31:13 PM


  13. Ari talks about the need for balance, but I think the extremely low cost of digital media creation and distribution—at the risk of piracy—IS the balance the entertainment industry chose. And I think it works in their favor. If their profits weren't better than ever, they'd go back to vinyl (to repeat my comment above).

    The problem the industry faces is that digital technology isn't the perfect tool for their business. Their business boils down to selling copies of works. Until the 1980s they actually relied on formats that ordinary consumers couldn't copy cheaply or perfectly: vinyl records, magnetic tape, film prints, broadcast, etc. Now they've chosen a technology that by its very nature requires copying information around. The industry chose to minimize its costs and maximize its profits knowing that doing so would also minimize the cost of piracy. So to the extent that the balance is tipped against the entertainment industry, it's because they saw dollar signs and _chose_ to tip the scales drastically in favor of piracy.

    Now they want the public to pay for the downside of their decision? They're constantly trying to cripple technology to serve their interests. Now they want us to pay with our rights, and submit to authoritarian powers? If there's an imbalance here, it may be that we devote any police powers at all to protecting copyrights on for-profit digital media. The promise of copyright protection in the Constitution presumes that authors will first do everything in their own power to protect their interests, like distribute their works in forms that are hard to copy. An authors can't deliberately act against his copyright interest and expect society to bare the cost while he pocket the profits.

    Posted by: JJ | Jan 18, 2012 7:54:54 PM


  14. You bring up the point about rights but fail to address the rights of intellectual property owners.

    Posted by: Jazzy | Jan 18, 2012 8:26:30 PM


  15. @Jazzy: It's the right of IP owners to choose how they distribute their work. They can choose digital distribution which is inherently fast and cheap to copy. This allows them to reach the largest possible market quickly and cheaply, but at the risk of piracy. Or they can choose non-digital distribution such as print, tape, film, live performance, etc. It costs a lot more to reach an audience, but that also translates into a lower risk of piracy. What the entertainment industry wants to do is choose the high-risk option and transfer the cost of that risk to the public.

    The point of copyright protection is to benefit the public not burden it. My feeling is that IP owners are only entitled to _public_ protection to the extent that they don't deliberately give up control of their work in pursuit of _private_ profits.

    Posted by: JJ | Jan 18, 2012 9:03:37 PM


  16. Well tell that to hundreds of thousands of pathetic singer and song writers who find distribution through YouTube. Sorry sir you used the internet to get your IP distributed don't claim your legal rights when it's stolen. You should have saved up your pennies made hundreds of thousands of CD and tape to distribute. Oh wait you did that? And what happened they digitized it and put it ont the internet? Well sucks for you. People have the right to steal things.

    Posted by: Jazzy | Jan 18, 2012 9:13:49 PM


  17. @Jazzy, I never said that pathetic singer song writers aren't entitled to relief or that people have a right to steal their work. I said they aren't entitled to police powers to protect their private profits from piracy when they deliberately and advisedly open their work up to piracy in order to achieve those profits.

    They're perfectly entitled to bring a civil lawsuit, where they bear the burden of proof, and where the loser, not the public, pays the cost.

    If technology gets to the point that no one can publish anything in any form without it being instantly digitized and distributed to the world for free, then don't expect to make money without going to court! Society doesn't owe pathetic singer songwriters our freedoms so that they can enjoy an obsolete way of life.

    Posted by: JJ | Jan 18, 2012 10:06:44 PM


  18. So JJ let me get this right...

    If the means to steal a property are available in the environment, then it is perfectly legitimate for anyone to steal that property with out paying.

    By that logic if you leave your car on the street, anyone is welcome use any means they like to take it because it's on the street.

    No one is going care if you offer to share it with anyone you like, but every police department in the country is behind if you don't make that choice to share. Doesn't matter how successful or wealthy you are or how you bought the car - if some one takes it, and you are financially affected. It's theft.

    Posted by: J | Jan 18, 2012 11:00:53 PM


  19. Sigh. No, @Jazzy. If someone steals my car, I don't have a car anymore. Digital media doesn't work that way. If someone drives away a _copy_ of my car, without ever depriving me the use of my car, then my car hasn't been stolen. At worst, the car maker may have been deprived of a sale. Now, if this new car technology _requires_ that I copy my car in order to drive it, and if the auto industry abandoned the old safe-from-copying car technology in order to maximize its profits, knowing that anyone could walk up to one of these new cars on the street and copy it, then your analogy might work.

    The police power that the auto industry would be asking for then, is the power to accuse anyone, without proof, of copying a car, and to compel any business at its own expense to keep that alleged car pirate off its property or risk being shut down by the government at public expense so as to protect private profits that the auto industry willingly risked when it made cars that could only be driven by copying them.

    Posted by: JJ | Jan 19, 2012 12:15:11 AM


  20. I think SOPA and PIPA are obviously going to far.

    All i know is that if i put a video on Youtube of ME singing a song from a CD that I BOUGHT with MY FREAKING MONEY and i get in trouble for it, somebody is gonna get punched in the face.

    Posted by: Zach | Jan 19, 2012 12:56:27 AM


  21. If you have spent time and money achieving the ownership of a car and as a result you plan to make a living or at least not have to pay for another car because that will financially upset you - then someone steals that car because they claim their need is greater and your financial circumstances don't matter - then that is outright theft.

    The value and benefits of the car to you or the money in your bank is not for someone else's assessment. They cannot unilaterally or collectively decide it's future value to you. OK in the case of the big banks it might be different. I'm staggered how civilized people are justifying theft.

    And by the way, if some car gang was taking hordes of cars and disadvantaging the financial situation of hordes of Americans by say streaming them down to Mexico - you can absolutely guarantee that the police would eventually set up road blocks and stop it. The right to own property and benefit from that property is the cornerstone of American capitalism.

    On the other hand, international revenues account in some cases for half the revenue on a movie or television series. The rampant theft of US content means the studios have reduced their movie output by half over the last five years, and broadcasters have moved from scripted drama to cheaper and less risky reality television. As the cultural image of the US changes from Friends or ER to Jersey Shore the impact and status of American culture as world-leading also diminishes and other countries produce their own local shows. Ultimately not protecting the industry that provides the image of America to the world means long term the respect for that image will be likewise diminished, and ultimately demand and supply of those stories also subsides. So the current system without SOPA is largely self correcting. In time the product will be worth the same as any other on the global market and the whole US copyright debate will disappear as a global premium vanishes.

    Pretty much the way of the US currency.

    Posted by: J | Jan 19, 2012 2:28:41 AM


  22. Wow. Your logic is so juvenile and ignorant about copyright law that it's scary. I'm not going to change your opinion. So I will resign to respect it even in its stupidity.

    Posted by: Jazzy | Jan 19, 2012 8:05:07 AM


  23. THEY DESERVE IT!! it's all BS...SOPA/PIPA were junk + MU arrest was unfair + I don't think swizz he has any legal connections to MU...imo it was all fabbed up to get other celebrity endorsements.

    p.s. looks like someone is pissed - FBI vs ANONYMOUS video:
    http://www.peeje.com/anonymous-hackers-we-legion-211/

    Posted by: Austin Hoffman | Jan 21, 2012 9:12:36 AM


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