My consolidated nattering on SOPA and PIPA

Here are my thoughts on SOPA and PIPA, consolidating about a dozen other posts I could have written today.

1. Copyright is a cool thing. Creators should have their creations protected. They should also be able to profit by selling their rights to something to a third party, who should then be able to profit from it. For some length of time, at least.
2. Copyright has also been dreadfully abused by Big Media, among others — leveraging extensions of copyright periods ad infinitum, abuse of copyright protection law like DMCA, etc.
3. Indeed, the abuse of DMCA by Big Media (false takedown notices, robotic takedown notices, mass takedown notices, extravagant damages claims, perpetual “let’s teach this 90-year old grandma a lesson” suits, etc.) show precisely why Big Media, et al. cannot be trusted with copyright enforcement. Which is a big problem with SOPA and PIPA.
4. It’s bitterly ironic that DMCA, which is itself a pretty awful bill with plenty of room for abuse (see above) is mentioned in the context of SOPA and PIPA as a reasonable law with lots of protections that the newer bills lack. A more slippery slope of expectations has rarely been seen.
5. SOPA and PIPA are parallel bills in Congress (the House and the Senate, respectively).  They  try to address an area that DMCA doesn’t cover — what if pirated material is being hosted someplace that US law doesn’t directly reach? While one is tempted to say, “Hey, welcome to that global economy that’s been so profitable to you in so many other ways,” it’s still a legitimate concern.
6. Unfortunately, they do so in a Bad Way and through a Bad Process.
7. The Bad Way they use is by intentionally breaking the Internet. Essentially they say, “Hey, there’s an infection on your index finger, dude. We have to cut off your hand.” SOPA/PIPA would try to amputate “pirates” from the Internet by doing things like
   (a) telling US-based DNS servers (the Internet computers that translate “wearepirates.com” from someone’s browser to the actual underlying numeric address on the Net, “123.45.6.78”) to block pirate domains (“wearepirates.com” would be purged from the US-controlled part of the Internet, like Pharaoh purging Moses’ name from all monuments);
   (b) telling search engines to purge anything they have about those sites (ditto);
   (c) telling financial institutions — credit card companies, PayPal, etc. — to stop doing business with those sites.
8. Of course, this doesn’t really stop real pirates.
   (a) Real pirates can set up shop at wearepirateshaha.com, and very quickly be back in business.
   (b) And, of course, this only affects entities under the control of the US. Folks in France or Taiwan or Russia or Mexico will still be able to get to wearepirates.com.
   (c) And, of course, the underlying IP addresses of that content will still exist (123.45.6.78, which DNS would conveniently translate to “wearepirates.com”), so if someone knows and can distribute that information, folks can still get to that information.
9. It’s like playing whack-a-mole with a chain saw. It’s cutting American uses off from chunks of the Internet. And it will do almost nothing about actual piracy.  It’s the legal equivalent of not diplomatically recognizing a country you don’t like; it may make you feel better, and it might be an inconvenience for those poopy-heads over there, but it doesn’t make that country disappear.
10. The real problem comes with … the Bad Process (how the Bad Way is invoked).  All that needs happen is the Department of Justice or a private copyright holder (Big Media!) goes to court, says someone’s a pirate, and gets a court order identifying the given site as being a pirate site.  That’s it.  There’s no notice to the accused pirate.  No defense allowed or invited.  No “due process.” Depending on the version of the bill, there’s no penalty for lying through your teeth (or being grotesquely mistaken) in applying for such a court order.
11. The problem is, we know this process will be abused — through negligence, stupidity, or malice — by Big Media. We know this because they’ve been doing the same with the DMCA. Only now, instead of dealing with false threats with a sledge hammer, they’re being given the power to do so with a chain saw with pretty much nothing to restrict them.
12. Further, it’s also open to abuse by the government.  Hey, all you folks worried about Big Government Oppressing You, are you worried about this bill?  You should be.  Because your site — your domain, your web page, your company’s web presence, your organization’s web system — can be wiped off the Internet by someone at the Dept. of Justice who doesn’t like those articles you’ve been printing or those accusations you’ve been making.  And we know that the government does abuse such powers, because it has abused such powers (see “War on Terror,” “War on Drugs,” J. Edgar Hoover’s FBI, etc.).  Sure, you might be able to go to court to get yourself back online — just pay some lawyers (though now your site is no longer getting any credit card payments or donations, so hope you have deep pockets) and wait for a looooong while.  Oh, and your domain email is gone.  And nobody can find you.  And you can’t sell t-shirts.  And most hosts probably won’t touch you with a ten foot pole because they don’t want to be taken down as a whole (if they haven’t already) for doing so, so you probably need to run your own server, except that Internet providers might now also be reluctant to hook you up.  Remember, a lot of the impetus for this bill came not just from Big Media but by folks in government outraged over WikiLeaks. Whether you’re a peace activist or a tea partier, this should be a huge red flag for you.
13. Better yet, even if you say, “Hey, I’m no pirate, I don’t do anything like that,” there’s still the chilling effect.  Yeah, you don’t think you’re a pirate, and your friends don’t think you’re a pirate … but how much of that song are you going to quote?  How much of that article can you quote in your blog post under fair use — and is that really going to be a defense here if your domain is shut down?  Are you going to post that news photo, or even link to that YouTube video?  Are you going to be worried about what you might do that would attract someone’s attention — someone who doesn’t like you, or who doesn’t understand the nuances of copyright law, or who doesn’t care, or some robot search engine that sees four words that match something its owner says is copyrighted and generates a report somewhere to be walked into a court by a lawyer?  Or are you going to play it perfectly safe and restrain yourself from doing something that might draw someone’s ire, or attention?  And, thus, go far beyond avoiding “piracy” from a “reasonable” standpoint, and into self-censorship?
14. Beyond that, it’s not just the content you post that you have to worry about, but the content you link to.  Are you sure that site you just linked to in your blog isn’t a pirate? Or someone who might be accused of being a pirate?  Or someone who might otherwise draw attention?  Because simply linking to them could make you a target, too.  Guilt through association.  With just the same lack of finesse and due process, and the same potential for abuse, chilling effect, etc.  Which is also why web hosts and Internet Service Providers will tacitly back up such a penalties, because they don’t want to be pulled down, either. And this  part of it is primarily why folks like Google and Wikipedia and BoingBoing and Reddit, et al., are so opposed to this bill.
15. So how might this be abused? Consider my site.
    – Could US Bank — who might be unhappy over my oft-commented-upon “Why US Bank Sucks” post — claim I was infringing on their copyright by including pictures of copyrighted logos?
    – Could Bryan Fischer  or the AFA claim that my extensive citation of some of Bryan’s doltish screeds are a violation of their copyright?
    – I link to a fair number of YouTube videos; if someone decided those videos were a copyright infringement, could they argue in court that I’m a chronic infringer of copyright?
    – If I were to speak supportively (or even non-critically) of WikiLeaks, and link to a site that has or discusses leaked material, could I be targeted as providing support (through links) of an organization that the US government claims is releasing classified material and is therefore also subject to penalties?
    More importantly, could any of the above, in a vacuum (i.e., without any defense by me), convince a friendly judge of such infringement?
    In that case, I could wake up one day to discover that hill-kleerup.org had been obliterated from the Internet, without any notice or warning.  No email coming in to my hill-kleerup.org email. Possibly discovering that bank accounts and credit cards that are associated with that email address have been frozen.
    Now, it seems unlikely (my ego is not that big) that I’m nearly significant enough for anyone to notice me and want to stomp on me that way.  On the other hand, that hardly means that it’s a good law (“Don’t worry — only prominent people and sites will be slapped down!”).  And the room for abuse is broad. Copyright holders (or claimants) don’t have to be multinational corporations to file for a court order.  Or someone who gets torqued at me (an angry neighbor, an ex-friend, etc.) might be a friend of someone who is in position to do something.  It could happen to me.  It could happen to you. It could happen to me if it happens to you and I linked to you.
16. What could make this better?  Fixing the Bad Process that leads to a Bad Way of combating piracy, fundamentally. I.e., scrap the law and start over.
    (a) The process has to allow some sort of means to protest, some sort of due process.  Copyright holders argue that such a process allows folks to continue to sell pirated material and rob them of profit, but that cannot be an excuse to allow folks to be accused and punished on nothing more than some lawyer’s say-so.
    (b) In addition, these bills should not apply to people and entities within the US. Recall that they are intended to deal with places where the DMCA could not reach. By making these laws global in scope, including within the US, it’s all the more clear that the purpose is not dealing with that limitation, but to supplant the (already-draconian) DMCA regime with something new.
    (c) The tools used by these bills to actually try and take these folks down need to also be considered, as their effectiveness is dubious at best to actually combat piracy, but, really, the fundamental first step is making sure that any penalties are only applied properly. Until that happens, these laws are a dangerous mess and should be rejected.

Lyndon Johnson, a man who knew a lot about lawmaking (and power-wielding) said, “You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered.”  SOPA and PIPA both claim to be for the benefit of American business / Intellectual Property holders, by combating piracy.  That’s fine as a goal, if somewhat sketchy in the reality of what the bills will be able to do.

But the potential for abuse, for “improper administration,” is tremendous.   That there is (a) no due process here, (b) in the face of known high probability (to a certainty) of abuse (through stupidity, negligence, or malice — by the government or by Big Media and other IP holders), with (c) such dire consequences to innocent targets, is legislative malpractice of the highest order.  It’s a sign of congressional representatives who are either clueless about the Internet or due process or both, or who are in the pockets of those who stand to profit or otherwise benefit from such laws.

These bills must not be enacted.

Contact your congressfolk. Let them know that.