Leonard J. French

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Stop the Stop Online Piracy Act

Censorship by any other name would smell as bad

By Leonard J. French – Posted: 21-November, 2011 – 10:46 EST – Edited: 28-February, 2012 – 11:16 EST

UPDATE 11 (20-Jan): Senator Harry Reid has postponsed Tuesday's vote on PIPA but pledges to find compromise "in the coming weeks". SOPA has also been sent back to the drawing board.

UPDATE 10: The Pirate Bay has a very interesting response to the tv, movie, and music industries. Paraphrasing: they point out that Hollywood was started in California to make it easier to circumvent patents on motion pictures. The industry is simply upset that they aren't the only ones who get away with illicit copying anymore.

UPDATE 9: (19-Jan '12 09:25 AM EST): Good job yesterday, everyone. Eighteen of PIPA's sponsors have backed out in the Senate and at least two SOPA supporters from the House. From PC World: "As a result, more than 162 million people saw the protest message on Wikipedia, 18 senators have backed away from the proposed legislation, and 4.5 million people signed a petition against the acts."

I'd say SOPA and PIPA opponents have produced a bit more that Mr. Smith's "stunt". In fact, the New York Times called it "a political coming of age for the tech industry."

Well done.

UPDATE 8 (1:52 PM EST): Three of the bills' sponsors have backed out. "Sen. Marco Rubio (R-Fla.) withdrew as a co-sponsor of the Protect IP Act in the Senate, while Reps. Lee Terry (R-Neb.) and Ben Quayle (R-Ariz.) said they were pulling their names from the companion House bill, the Stop Online Piracy Act." reports the L.A. Times.

The SOPA blackouts are not a publicity stunt. They are the result of the coordinated efforts of interested individuals and organizations who think the bill goes too far and will be abused. More sites than just wikipedia are involved. Sites like Reddit, Mozilla, Google. Even the Pragmatic Bookshelf is blacked out and I couldn't download the update to my HTML5/CSS3 manual. Boo.

UPDATE 7 (18-Jan '12 9:30 AM EST): Many sites are going dark for 12 or 24 hours today, January 18th, to raise awareness and generate calls to congress opposing SOPA. Slashdot has a pretty comprehensive report on the happenings. Reddit has a pretty comprehensive write-up on the SOPA bill itself.

As an attorney, the first question I often get is "Is the bill really as bad as they (or 'the internet') say it is?" Having read through the bill and discussed it with colleagues, my humble opinion is that the bill is too ambiguous and places liability on the wrong people. It's clear that the aim of content owners was to gain power to use against websites and organizations that are in the business of providing truly counterfeit goods, tangible or digital.

But this bill gives more than that power. It gives power over sites and organizations that don't support piracy but may occasionally host pirated content by reason of user upload. May I remind everyone that UMG just recently abused the power it was given to take down Megaupload's new commercial.

Thus, the bill is bad and must be killed and we must educate our representatives that this is not the way to go about combatting piracy. May I remind you, this bill comes from the same people that may be inflating the numbers on the cost of piracy by just a little bilt.

** Please call your congress persons today and sign the petition against SOPA.

P.S. TheOatmeal.com has a great presentation on SOPA.

UPDATE 6 (17-Jan '12 4:24 PM EST): House Judiciary Committee Chairman Smith expects SOPA markup to resume in February. "Due to the Republican and Democratic retreats taking place over the next two weeks, markup of the Stop Online Piracy Act is expected to resume in February."

Keep your lamps burning and be vigilant, SOPA opponents.

UPDATE 5: "This is going to be wow. I hope Wikipedia will melt phone systems in Washington on Wednesday. Tell everyone you know!" Jimmy Wales, Wikimedia, via twitter

Wikipedia has announced that they will shut down for 24 hours to raise awareness of the SOPA and PIPA. Coupled with the mainstream media coverage and other sites shutting down, I think we'll see some interesting things tomorrow.

One of my facebook followers quoted Glenn Reynolds of instapundit.com: "Bury it at a crossroads with a stake through its heart. Then vote against its sponsors."

UPDATE 4: Victory? Rep. Smith says the provisions in SOPA for blocking infringing sites via the Domain Name System (DNS) have been removed. The Obama Administration comes out against both SOPA and PIPA (Protect-IP Act). And now, House Oversight Chairman Issa says there will be no vote until 'consensus' is found.

This is all certainly good news. SOPA's opponents have generated enough awareness that the bill has at least been stalled. But its proponents are still looking for ways to deter piracy; I doubt this is the last we'll see of attempts to increase liability on content providers.

UPDATE 3: SOPA markup and vote have been delayed until the new year.

One of the concerns working against SOPA is that it would allow for the blocking of a web site because of administrators' inability to police user-generated content. Interestingly, this whitehouse.gov petition incorporates a link to a copyrighted image, highlighting the issue. Yes, that's a sad reddit robot from a site based entirely on up-votes and down-votes. The internet seems to have a voice. Don't forget to sign the petition.

UPDATE 2: SOPA markup and vote delayed until Wednesday, 21-Dec 2011.

UPDATE 1: Senator Wyden (D-Oregon) has pledged to filibuster the bill should it hit the Senate floor. He will read the names of the petitioners from stopcensorship.org. Please add your name to the list today.

ORIGINAL ARTICLE: To combat online theft, content creators and owners have turned to many means. Some have introduced Digital Rights Management measures (DRM). Some have turned to the "take-down" provisions in the Digital Millenium Copyright Act (DMCA). Others have been in contact with U.S. Customs to limit the influx of counterfeit goods. These measures have their place but they require considerable effort on the content creators' and owners' part. This raises their overhead (internal costs) and thus creates an obstacle to be overcome whenever they consider a new venture.

These content creators and owners understandably want to be in the business of creation and sales; they are not interested in policing the whole of the internets for pirated copies of their property. They most certainly are not interested in having to mount a legal front line to send take-down notices and create DRM software (and maintain the servers that go along with it).

Thus, they are very interested in externalizing their costs. The latest attempt to do so, the Stop Online Piracy Act (SOPA), calls upon Congress to enact a new law. (The full text of the act is here).

But the SOPA (aka PROTECT-IP and E-PARASITE) goes too far. In trying to prevent actual theft, it gives rights holders too much power to shut down legitimate sites. In addition, it also prevents Americans from obtaining lower-cost prescription medication from suppliers outside the United States.

The SOPA requires content providers to respond within five days to take-down requests. The consequence of not responding is to have their site blacklisted from search results, their payment providers suspend their accounts, and their hosting services shut down their site, all without court oversight. It falls to the content provider to hire an attorney and petition a court within those five days.

It is true that some piracy would be stopped by these measures. But this is analogous to killing a fly with a cannon. Even if you have an infestation of flies, you are going to do more damage than kill flies. Among the sites at risk for blacklisting are Etsy, flickr, and Vimeo.

But the content owners may not feel the sting of that damage. They, along with the search engines, payment providers, and hosts, are immune from prosecution if they complied with the take-down notice in a good faith belief that it was lawful.

There have been many examples of unlawful take-downs. Content owners often overlook the law's "fair use" right, allowing many lawful uses of copyrighted (and even trademarked) material without the owners' permission.

There are other aspects to the SOPA that also offend my belief in open information exchange. Here is a link to the Electronic Frontier Foundation's series of articles on the SOPA. Here's another on the effect on the ability to Americans to obtain lower-cost prescription drugs.

I urge you to contact your representatives in Congress. The Electronic Frontier Foundation has even made it easy: visit this link and enjoy a short series of pages which will send a message urging your representatives to vote against the act.

- Leonard J. French

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