What's Wrong With PROTECT IP and SOPA?

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You may have heard about some new bills making their way through the U.S. Congress, related to piracy on the internet. But what are they and what's the big deal? Here's a simple guide to what the laws are and why so many internet nerds (like myself) are against them.

Executive summary: the new laws could make you, as an individual, liable for a five-year prison term for posting any copyrighted work; they would hand massive new power to the entertainment industry (and other content-owning interests) to shut down websites for minor infractions; and they would likely result in large-scale censorship of everything users post online because of these issues. Sounds great, huh? For a summary, check out this video:

Disclaimer: I am not a lawyer, and this post does not contain legal advice. I am actually a copyright holder, and I think these bills threaten the fundamental operation of the internet -- which is where I make my living.

A Tale of Three Acts

In the Senate we have under consideration the PROTECT IP Act (S. 968); in the House there's the Stop Online Piracy Act (HR. 3261) (SOPA). Together, the bills would give copyright owners and governments new power to shut down websites if the copyright owners believe any infringing content is on the sites. Note that no trial has to take place; the content owner -- think "movie studio" -- just has to send a notice saying something bad is going down, then the site can be blocked via a legal injunction brought by a US government attorney and a single judge.

While the stated intent of these laws is clearly good (to reduce online piracy), the execution is so broad that it "breaks the internet" -- these laws shift the balance of power online such that major entertainment industry players (again, think "movie studios" or perhaps "record labels") can strangle websites. Can you think of any websites you visit that might have an image, song, or a video that infringes somebody's copyright? I bet you can. Can you imagine what would happen if copyright holders could block the entire site, prevent advertisements from running, and block credit card payments from occurring? You guessed it: those sites would be dead.

We already have a law in place that governs online piracy, and it predates these two new acts. It's called the Digital Millennium Copyright Act (DMCA), and it was passed in 1998. While it has its own problems, it contains pretty straightforward mechanisms for copyright owners to request that their content be taken down. Indeed, "DMCA takedown requests" are very common online, and I have issued them myself to various websites. (I'm not just a writer, I'm a photographer -- and people steal my work all the time. So I find them and issue a takedown request, and the material is removed. Not the easiest thing in the world, but it works.) I want to be totally clear here: I'm against piracy, and I pursue people who pirate my work...and I think these new bills are bonkers. So when a copyright holder who currently exercises his legal powers (me) thinks these bills that would expand his legal powers is going too far, you know something weird is going on.

What these new acts would do effectively takes the sniper rifle of the DMCA -- "Somebody on your forums posted my photo without permission; remove it" -- and turns it into a shotgun: "Somebody on your forums posted my photo without permission; your entire website is blocked for everyone until you remove it." You only have to think for a few moments to realize how many websites would effectively disappear if this were the law of the land -- no more YouTube, Vimeo, Flickr, Twitter, Facebook, Myspace, Tumblr, Wordpress, or any other site where people can post content of any kind (remember, copyright extends to written works too -- so this is not just about movies and songs). Many of these sites operate based on a mechanism that assumes people can freely post content (often with an automated screening process to try to identify infringing content, as with YouTube), and then copyright holders can identify infringing content, make a complaint, and have it promptly removed. This model (which is fundamental to how the internet works today) breaks down if the new laws pass. It also creates a regime where any new web service needs to enter into some kind of ongoing legal relationship with every copyright holder ever in order to really be safe. This is the definition of strangling innovation: startups can't afford to do the level of content filtering that, say, Google can. So there just won't be any more startups that let people share things. Oh, wonderful!

Who's Against the Bills

In an open letter, a who's-who of major tech companies wrote to Congressional leaders, urging them not to pass these laws. The signatories include AOL, eBay, Facebook, Google, LinkedIn, Mozilla (they make Firefox), Twitter, Yahoo, and Zynga (they make Farmville and other games). Perhaps the most vocal critic of the legislation has been Tumblr (a blogging site where mental_floss shares content); Tumblr has added information to every user's dashboard pointing to a page called Protect The Internet, offering to call you to tell you more about the issues. Even Kickstarter is against the legislation. Oh, and our friends at Boing Boing have written up their own article on the issue. Guess what, they don't seem to like these laws either.

I live in Oregon, where we happen to have some really smart politicians. At the moment, Senator Ron Wyden (D-Ore.) has placed a hold on PROTECT IP. In a press release yesterday, Wyden's office quoted his statement to a House Judiciary Committee hearing. Here's a snippet:

As I have said before, this is not an issue where we should use a bunker-buster bomb when a laser beam would do. And that is not just my opinion, venture capitalists who fund Internet start-ups, the biggest and smallest actors in the tech community, law professors concerned with speech, Internet technologists, security experts and mainstream and new media have all expressed concerns about the legislation advancing in Congress.

In writing laws to police the Internet, we need to consider more than how effective a proposed remedy would be at combating infringement, we must also consider the impact proposed remedies will have on everything else online. This means keeping the following in mind:

1. Be deliberate. While rights holders and law enforcement are understandably eager to go after bad actors, we must be mindful of the precedents we set here at home, and around the world.

2. Get the scope right. Narrowly focus law enforcement's authority on those who are willfully and deliberately breaking the law or infringing on others' property rights for commercial gain.

3. Avoid collateral damage. Rather than frustrating the architecture of the Internet or establishing a censoring regime, consider instead promoting approaches that empower users and do no harm to the 'Net. More simply, fish for tuna without catching dolphins.

4. Promote innovation over litigation. Our efforts should be to protect copyrights and trademarks, not outdated business models.

Remember that bit about the five-year prison term I mentioned at the top? Here's a snippet from Boing Boing, quoting Tiffiny from Fight For The Future:

Sites that would be legal under the DMCA and its safe harbor provisions would now risk losing everything for allowing user generated content. It also has added in the streaming felony bill that would make it so ordinary Internet users are at risk of going to jail for 5 years for post[ing] any copyrighted work that would cost $2,500 to license. And because copyright is so broad, that means videos with copyrighted music in the background, kids in a school play, people singing karaoke could all be a risk.

Guess what's also a felony in, oh, let's just pick Oregon? Among many others: burglary, child pornography, DUI, tampering with elections, kidnapping, manslaughter, murder, rape, and robbery. Really, Congress? You're really going to make it a felony to sing a song? That's utterly insane.

What You Can Do

Check out Tumblr's page allowing you to email your representatives or get a phone call with more info; use the Electronic Frontier Foundation's page to find your representatives and email them (it's easy); or check out American Censorship Day (which was yesterday, but there's still time to act).

Also, please share your thoughts in the comments. I'm assuming there is some counter-argument that these bills are a good thing -- I'd love to hear it; all I've found online is a bunch of smart people who I trust saying this is a really bad deal for all of us.

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November 17, 2011 - 8:54am
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