More than 10,000 websites, large and small, went “dark” for several hours on Wednesday protesting the SOPA (Stop Online Piracy Act) legislation in the House and its companion bill in the Senate, PIPA (Protect Intellectual Property Act). The websites are making their feelings known about legislation that Lawrence Tribe, Harvard constitutional law professor, says would be the “end of the Internet as we know it.”
There have been exaggerated claims and disinformation disseminated by both sides in the debate. But regardless of the intent of Congress in trying to stop online piracy that costs American business more than $5 billion a year, sharp criticism from the online community has scared several co-sponsors of the legislation to take their names off the bills and forced the bill’s primary sponsors – House Judiciary Committee Chairman Lamar Smith (R-TX) and Senate Judiciary Committee Chairman Patrick Leahy (D-VT) – to amend the legislation before they’ve even been debated on the floors of their respective chambers.
The protests have also united the tech segment of the online community and, perhaps for the first time, shown that it can flex considerable political muscle when called for. Giant websites who went “dark” on Wednesday like Wikipedia, Reddit, and Boing Boing, were joined by smaller concerns that may not even be directly affected by the legislation, but realize that the bills are just one more attempt by government in a decade-long campaign to get control of the Internet.
Indeed, from serious efforts to apply a federal sales tax to web purchases to outright banning of some sites, government encroachment on online freedom is a battle that demands constant vigilance. It may be an exaggeration by opponents of SOPA to claim that parts of the bill resemble China’s attempts to control the Internet, but there is a slippery slope argument to be made that the architecture of a “Firewall of China” would be in place if SOPA became law.
Proponents of the legislation include the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) who have spent tens of millions of dollars on lobbying and campaign contributions to lawmakers. They argue that the bills are no more sinister than other anti-piracy measures that have been passed and that the legislation is absolutely necessary to protect American jobs and the intellectual property of our creative people. This is a compelling argument because it isn’t just profit and loss at stake; it is the hard work and inspiration that goes into the production of films and music that is at risk because of piracy. The creators of content are the ones hurt most because many of them receive a residual for each CD or song that is sold. Piracy cheats them out of their legitimate earnings.
But opponents don’t disagree with the need for going after the pirates. They believe that SOPA and PIPA are overkill and punish the innocent rather than the guilty. They also claim the bills won’t work as intended, will stifle creativity and innovation on the web, would inhibit the free flow of information, and slow the Internet down.
What exactly has everyone in an uproar? Here are a few of SOPA’s provisions that are considered the most onerous, and their potential effects on the Internet.
1. It would force Internet service providers to block access to DNS services from foreign sites that are engaging in piracy.
We already have a system where if copyright is infringed, the company can make a request that the offending content be removed. YouTube does this all the time. But under SOPA, the offending site – and those who link to the site even if it is unaware of the copyright infringement – can be shut down with no warning, and no due process.
This provision has been dropped from SOPA, but Senator Leahy has not committed to taking it out of PIPA.
2. Require search engines like Google to remove the pirates from their service.
This would mean that search engines would have to radically alter their algorithms to comply. And they would have to make those alterations constantly.
3. Make payment services like PayPal and credit card companies stop processing payments from offending sites.
This would be a nightmare for smaller companies who might inadvertently link to or feature a pirated product, only to have their entire income tied up while things get sorted out.
4. Force advertisers to pull their ads from offending sites.**
Another nightmare, considering that many ad networks tailor their message to individual IPs and forcing advertisers to stop advertising on these sites would mean a drastic alteration of the technology involved.
For the ordinary web user, it will mean more difficulty in using search engines to find what you want, and a reduced ability to share online content. It will also mean less innovation for which all Internet users can take advantage. It may also impact social media in ways that are unknown, but might include pre-screening comments and photos.
All of this is reason enough for the big websites to make their feelings known by the strongest possible means. And they appear to be getting results. The White House has issued a statement that President Obama will “not support any legislation that reduces freedom of expression … or undermines the dynamic, innovative global Internet.” This forced the sponsor of the bill in the House, Rep. Smith, to withdraw one of the more onerous parts of the bill relating to getting DNS services to block offending sites.
There has also been fallout with regard to co-sponsors who have withdrawn their names from the bills. Three Republican senators – Marco Rubio, John Cornyn, and Roy Blount – have withdrawn their support, bringing the number of co-sponsors below 40. This puts the bill in jeopardy of failing to make it past a potential filibuster and could force Majority Leader Harry Reid to withdraw the bill from consideration.
In the House, Lee Terry (R-NE) and Ben Quayle (R-AZ) have rescinded their support for SOPA, and Chairman Smith has indicated he will revisit the bill in February after he can fashion a consensus. Smith remains adamant that he will bring the bill to the floor despite growing opposition from his Republican colleagues who are really beginning to hear it from the online community. Smith tried to downplay the blackout, saying, “I realize some people are nervous because of misinformation about this bill, but I am confident that ultimately the facts will overcome fears.”
In fact, the tech community, not known for its political advocacy, has flexed its muscles in this fight. Millions of signatures were gathered for online petitions against the legislation. House and senate websites slowed to a crawl as traffic doubled. Phone calls poured into lawmakers’ offices. Emails were so numerous, that congressional inboxes were full and servers were running at full capacity. The onslaught took many on the Hill by surprise. Some of the response is clearly overreaction, but there are enough awful provisions in both bills to justify a strong response.
Rep. Darrell Issa (R-CA) introduced an alternative anti-pirating measure on Wednesday. It is a companion bill to legislation offered earlier by Ron Wyden (D-OR) in the senate. The Online Protection and Enforcement of Digital Trade (OPEN) Act would allow copyright holders to file infringement complaints about foreign websites with the U.S. International Trade Commission. The ITC would then investigate the complaints and decide whether U.S. payment processors and online advertising networks should be required to cut off funding.
Issa calls the legislation a “targeted, effective solution to the problem,” while Wyden wants the Senate to forgo debate on PIPA and work on “achieving an enduring and real agreement that combats copyright infringement without doing lasting harm to the Internet.”
Reconciling the need to protect intellectual property rights while maintaining a free and open Internet seems a contradiction at this point. The offending sites are almost all offshore and the problems documented above with enforcement and what amounts to censorship of the Internet make the proposed solutions injurious to liberty.
But perhaps there is a way forward. As Paul Rosenzweig of the Heritage Foundation writes, Congress “asks the right questions, but offers the wrong answers.” It is imperative for all concerned that we get it right because the alternatives are bad for both sides.
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