Friday, 13 January 2012

What does SOPA mean for me?

This is what I think of SOPA: it’s the entertainment industry getting the rest of us to watch out for piracy, and to stamp it out for them. Wait, I’ll explain.

But first: there’s a fair amount of material available on the web about the proposed Stop Online Piracy Act (SOPA for short) that has been brought to the United States House of Representatives for consideration as law. Unfortunately, most of the online comment is furiously partisan. Because SOPA has to do with freedom of action on the internet tech writers and bloggers en-masse hotly condemn the law. In doing so they say some fairly sharp things. A lot of heat, but little light, as the saying goes. This blog post is designed to (hopefully) increase the amount of information available about SOPA without resorting to the hyperbole of its heretofore critics.

To be bald and unadorned (whew!), to start off with: “SOPA is an effort to get at the very real problem of rogue Web sites … offering illicit downloads of movies, music and more,” according to David Carr in the New York Times (1 January 2012). 

Now, one of the problems the online commentariat has with SOPA stems from the fact that the companies pushing for the law, such as big motion picture production companies, have deep pockets and are donating money to politicians. That has made for a big, fat, easy target set up in the faces of anarchically-minded web-naturals like Cory Doctorow, the fiction writer.

Carr’s article is worth reading but his conclusion is that you the individual should just go away and work out what SOPA means for yourself. Not a big help, David, but thanks. The law is important for people to know about but his suggestion is not helpful when you’re dealing with some great, big piece of legislation that is expressed in incomprehensible legalese. So I’ll use Doctorow’s article in Publisher’s Weekly (5 December 2011) as my jumping-off point because I think that his clear style at least makes the partisan viewpoint easy to understand.

Keep in mind that, for the moment, my main concern about SOPA is its likely ability to impact on my own activities as a blogger and user of social media. Blogging is something that I have thought a lot about, and I’ve also written about it before in an opinion piece on the implications of paywalls for bloggers (12 February 2010). I also have plans in the future to make movies at home using material available on the internet, such as photographs. So I would want to know how SOPA would affect my use of such material.

SOPA places the onus of responsibility on the middleman, rather than on the person loading the offending material to the web. So, for example, “Web hosts, payment processors, and operators of technical infrastructure, like the Domain Name System,” observes Doctorow.

“Under SOPA, these intermediaries could be ordered to censor or block access to, and funding for, any site accused of copyright infringement, without due process, without a jury or the right to rebut accusations,” Doctorow goes on. Who does the ordering? The US State Department, Doctorow tells us. Carr says it’s the Department of Justice. 

Doctorow says that body would be “vested with new power to demand Web sites be delisted from domain name servers” and also be able to “demand that payment processors cut off access to funds for these sites and demand that advertisers and ad brokers sever ties with the accused”.

It’s the mechanism that would be used, say the law’s opponents, that offends intelligence. It’s the fact that an order to cease service could be issued “without due process, without a jury or the right to rebut accusations”, that rankles. But what does “due process” mean? Ok, well Carr says the Dept of Justice “could seek a court order against a Web site that illegally hosts copyrighted content”. So there’s a judge involved, not just the government department alone. Wikipedia’s SOPA page says that judges could “immediately block access to any website found guilty of hosting copyrighted material”. Presumably that means the copyright holder would have to convince the government department of an offense, and that body would then have to convince a judge that an offense had taken place.

Carr says also that under SOPA “private companies would be allowed to sue Internet service providers for hosting content that they say infringes on copyright”. So private companies can go straight to court to get a website blocked. Carr again:
[These measures represent] a very big change in the current law as codified in the Digital Millennium Copyright Act, which grants immunity to Web sites as long as they act in good faith to take down infringing content upon notification.
Under the Digital Millennium Copyright Act of 1998 (DMCA), websites that are identified as hosting infringing material are notified by the copyright owner and then given a certain amount of time to remove it. SOPA brings that onus of responsibility back to the ISP rather than just the website. And the block would be immediate, rather than delayed.

The DMCA is obviously not working, for copyright holders. For example, right now, YouTube is fighting a suit brought against it by entertainment company Viacom, who say the Google subsidiary “was engaging in ‘massive intentional copyright infringement’ for making available a contended 160,000 unauthorized clips of Viacom's entertainment programming” (from Wikipedia’s DMCA page). I think Viacom’s case has merit. There are a lot of pirated videos on YouTube at the moment.

SOPA would allow the offending website to be blocked immediately, with the “burden of proof then resting on the website to get itself un-blocked” (Wikipedia’s SOPA page). Opponents of the proposed law say that websites would in future need to remain vigilant against the possibility that infringing material could be posted on their pages. In such a situation, a chilling effect would come into play as website managers would be extremely cautious about what material was posted on pages they hosted. Yes, there is no doubt that the law, if passed, would exert a chilling effect. But maybe it’s time for websites like YouTube to take responsibility for content that is loaded to their pages.

Lamar Smith, the Republican proposer of the law, says that “Sites that host user content—like YouTube, Facebook, and Twitter—have nothing to be concerned about under this legislation”, but of course we know that users often post content they do not create, such as pirated videos and links to pirated videos. This is a common form of sharing and engagement on social media.

Just imagine that Twitter was shut down by a judge on the urging of a US government department because one user had posted a shortened URL pointing to a page containing a video that offended a copyright holder. What the law is about, in effect, is distributing responsibility for breaches of the law of copyright. At the moment, the copyright holder holds all of the responsibility. What the entertainment companies are saying is: we want the middleman to also take on part of the burden of making sure that the law is not broken.

What might happen in the real world is that a copyright holder might tell a middleman, such as YouTube or Twitter, about an offending video or an offending link. The middleman would then immediately take it down – not wait until it had confirmed that a breach of copyright had actually taken place. Because of SOPA the middleman would act quickly, fearing that its entire domain could be taken offline. It seems to me that SOPA giving this kind of muscle to copyright holders is not such a bad thing.

Social media sites like Facebook and Twitter would then probably instruct their users in what could and could not be posted on those sites. Social media sites, given responsibility for ensuring copyright law is not broken, would shift some of that responsibility onto users.

Consideration about copyright would in future become something that everyone will make more of. If you’ve followed so far, then I’ll get to Doctorow’s summation, which follows. I’ve highlighted the words that I think are just wrong:
SOPA would put the world’s ability to communicate freely about anything—movies, music, or books; or government corruption, police violence, employer malfeasance, and military atrocities—behind the entertainment industry’s desire to secure its business models, because, under SOPA, there would be no way to create an Internet platform for free public discourse that could satisfy the level of control demanded by these firms.
Really? And what about fair use? Personally, I can live without the need to post videos I might have made using my TV that show Beyonce singing her latest blockbuster. The way Doctorow phrases his summary it sounds as though commentary by unpaid bloggers with, say, a photo clipped from a promo vid, would be actionable under SOPA. I don’t believe it, and neither should you.

But if you know of examples of egregious abuse that have been perpetrated by copyright holders under the DMCA, then please put your information in the comments. All opinions are valued, and will be listened to.

3 comments:

Elizabeth said...

I read your post with interest.

SOPA has a deadly flaw. 'Guilty until proven innocent' is not what the framers of the Constitution had in mind. Treating each alleged violation as though it is true, with the burden on the accused to prove otherwise, is a sad deterioration of our fundamental rights. Preemptory shut-downs of whole sites or companies based on an accusation?

A friend of mine had a serious, false accusation made against him by his highly-annoyed ex-wife. Fortunately, the burden of proof was on the accuser. Instead of ruining his company and life, the case only ruined a few months of his time.

There are already rules to deal with severe infringement issues where the copyright holder is losing money right now (i.e. an emergency). This is the temporary injunction, in which the injured person or company gets an order from the court to stop the infringing person or company immediately, freeze their bank accounts, etc. This is usually done ex-parte, that is, without the participation or even knowledge of the alleged offender. The parties go to court and sort it out from there, at which point the injunction will be lifted or made permanent. The accuser has the advantage of surprise; however, the burden of proof is on the accuser in this process, where it belongs. If he wrongly accuses someone, he is liable for damages. Thankfully, this is the mechanism that restrains people from damaging competitors, and making irresponsible or frivolous allegations.

You mention Fair Use. I work in education and can assure you that Fair Use means different things to different copyright holders. There is Fair Use for libraries and schools, but it is so complex, unreliable and ever-changing that we can only hope that we don't break any new interpretations of the law (who can keep up with them?) or annoy any copyright holders or get noticed if we do.

Anyone who thinks law is black and white is not familiar with the law, which comes in infinite shades of grey. The whole point of common law, of course, is that it evolves - it changes slightly or dramatically with each and every new court case. Already, the DMCA is far from clear (labyrinthine, actually) for the average media user.

The problems of copyright (or "copywrong" as some call it) are deeper than anything SOPA can fix. I understand that you are looking at SOPA solely from the perspective of 'what does it mean to me?' but I think a broader view is necessary, and that our legislators have completely missed the boat.

noahf said...

I think there's a problem with the assumption that a government-granted monopoly on intellectual property should be enforced by anyone other than the copyright holder and the government. I don't want other people with no direct interest in any particular piece of content to be able to (let alone have to) police it with no prior legal review.

Between this and the DMCA, I prefer the latter mechanism. It provides tools to the content owner to issue takedown notices, and I think that's the appropriate place for the burden of responsibility to be placed.

Marc M said...

If you think that Viacom are exclusively in the right, or that there are no abuses of the existing DMCA, you just plain haven't been paying attention.

If you go and read more about the Viacom case (i.e. at Groklaw) you will find that some noticable percentage of material that Viacom has asked be removed from YouTube was in fact uploaded by different arms of Viacom.
YouTube understandably became upset when ViaCom uploaded videos, then demanded their removal, then their reinstatement, not just once, but numerous times.

Or for other DMCA abuse, see:
https://www.eff.org/wp/unsafe-harbors-abusive-dmca-subpoenas-and-takedown-demands , where you discover that many of these takedown notices are sent based solely on partial filename matches and nothing else -- the RIAA folks don't even check the file AT ALL to see if it actually contains the content they think it does. Add to that the various fokls who have been slapped with lawsuits for allegedly filesharing copyrighted material; and it becomes clear that the content companies are simply spraying the world with a thick layer of DMCA takedowns, threatened lawsuits, etc. because of their paranoid perception that they are being robbed blind.

So now SOPA proposes giving those same "copyright holders" rights to shutdown entire domains(!) with the same sort of lack of evidence that they already use for DMCA takedown notices. They want the ability to take entire universities off the air for one student who publishes a video with a similar title to one of their movies; ruining access to remote telescopes, joint university business ventures, and so on and so forth.

But examining the incompetence and inadvertent damage of Big Media's paranoid overapplication of DMCA ignores the New Possibilities of this new SOPA setup. What happens when Barnes and Noble (through an intermediary) files a claim against Amazon a week before Christmas, or when UPS files one against FedEx, taking their competitor offline for a few days, or a week, at their busiest time of the year? What happens when somone at the State Department takes a bribe to knock someone off the network in a similar fashion?