U.S. government also a villain in piracy act story

The MPAA has presented the U.S. House of Representatives with a custom-crafted bill designed to put the Internet fully under the control of the industries it represents. And our government has aided and abetted along the way for years. Time for a revolution?

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Now that we've had a few days to digest the MPAA-backed Stop Online Piracy Act (PDF), can we all finally agree that the MPAA is evil and Hollywood wants the Internet to die? And then can we stop letting them write laws for us?

SOPA is the latest--and perhaps the most brazen--effort in a string of attempts by the MPAA and RIAA to bend the Internet to their corporate will and undermine all kinds of consumer rights. It's a breathtaking piece of work that would give Hollywood and private companies free reign to censor, remove, or prevent the creation of large chunks of the Web. But the industry is only offering such nightmarish law because our government has been letting them get away with Internet murder for years now.

SOPA, also called the "E-PARASITE Act" (I mean, really?) is the darker version of the already dark Protect IP Act , which has been dogged by free speech, technical, and even constitutional concerns. But far from offering a reasonable alternative to Protect IP, the House delivered SOPA, which would let content owners bypass cops, courts, and any semblance of due process, and "disappear" entire Web domains like some kind of privatized secret police force.

The legislation is shockingly bold. But again, the industry has every reason to believe it's got government on its side--because it does. I truly can't believe how long the Internet community has been fighting--and losing--against the creeping tide of intellectual property crackdown. I wrote a brief history of the wars back in March 2010, when the MPAA and RIAA submitted a wish list to the Office of Intellectual Property Enforcement asking for a wish list of government enforcement that would have created a fully formed copyright police state, featuring government-mandated software that searches for and automatically deletes "infringing" content, warrantless search and seizure, border searches, and much more.

In fact, I've written more words on the topic than I care to count, since at least 2005, and yet the laws keep getting more draconian, the claims bolder, and the laws broader and potentially more damaging. My hope, if I have any left, is that SOPA is so appalling, and there's so much opposition to it, that we can finally see these attempts for the flagrantly ridiculous overreaches that they are, and restore some sanity to the process.

Enough is enough.
Enough is enough.

SOPA would allow rights-holders to get court orders to take down Web sites or blacklist entire domains based on accusations of infringement. The "infringements" themselves can constitute a single link on a single page of a site, or even an accusation that the site is taking steps to "avoid confirming a high probability" of infringement. Let me translate: if someone, anyone, who holds a copyright or trademark on anything, thinks you're deliberately not doing anything about something they consider infringement, they can get your site taken offline and there's virtually nothing you can do to stop them. What?

There's more, and the "more" is even more insidious. The bill would also allow a rights-holder to send an infringement notice to an ad network like Google or a payment processor like Mastercard or Visa. In that case, with zero legal proof of infringement, the ad networks or payment processors would have five days to stop doing business with the accused site--an accuser can kill the alleged infringer's business, with, again, no proof or legal recourse.

The bill almost completely dismantles the DMCA-enacted safe harbor provisions. Infringement claims, for all intents and purposes, don't even have to be valid. There's no burden of legitimacy to protect sites from content owners lobbing bogus claims, and since there's no due process involved, the damage would long since be done by the time an accused site ever managed to clear its name. There's no penalty for content owners whose claims might be found to be bogus, and there's very little redress for accused sites.

The bill would also require far more active involvement and policing on the part of service providers, and some critics say it would go so far as to require service providers to monitor user activity, in order to be able to prove that they haven't been avoiding confirming the possibility of infringement. Plus, the over-broad and vague language in the bill would mean that despite its stated focus on "rogue foreign sites," its provisions could easily be applied to legitimate sites like eBay, YouTube, Twitter, Amazon, or even Google itself.

And because entire domains can be blacklisted at any point, ISPs like Comcast would have to maintain giant lists of censored material, and, as the CEA points out, "SOPA incentivizes Internet sites that do not want to face liability under this bill to censor their content from users in the United States, which in turn incentivizes oppressive regimes and countries that regulate free speech to require U.S. Internet companies to censor content from citizens in those countries." Simply put, it's a nightmare.

By my reading, there's nothing acceptable about SOPA. I'm not alone in this assessment. The Electronic Frontier Foundation pledges a multi-installment series on how SOPA will destroy the Internet and kill innovation, saying it simply cannot be fixed and must be killed. And they've got unlikely bedfellows: even a major Tea Party faction has come out against SOPA and the Protect IP Act, calling them dangerous Internet censorship bills--which they are.

Gary Shapiro, president and CEO of the Consumer Electronics Association, writes that venture capitalists are concerned that the bill will slaughter startups in droves and kill innovation and job creation with a toxic, threatening cloud of potential litigation. Rep. Zoe Lofgren, the Democrat who represents Silicon Valley, tells CNET the bill would "mean the end of the Internet as we know it."

The question isn't whether SOPA and Protect IP should be killed. The question is how have we gotten ourselves in a position where these bills were proposed at all? Arguably, it's because when they're not sitting in the pockets of banks and financial institutions, our government and certainly the current administration is busy in bed with Hollywood. The current administration has been cheerfully ceding your rights to the MPAA and RIAA since it took over the White House.

Wired recently published e-mails obtained under the Freedom of Information Act that show the U.S. copyright czar, Victoria Espinel, and other high-ranking administration officials cutting friendly backroom deals with the entertainment industry as it pushed forward sweeping new regulations requiring, for the first time, ISPs to crack down on individual customers suspected of violating copyright.

Vice President Joe Biden has a long history of voting for RIAA-backed measures and against consumer friendly technology regulations. And President Obama has been a staunch supporter of strict intellectual copyright laws and of negotiating the potentially nightmarish Anti-Counterfeiting Trade Agreement in secret--not to mention appointing five RIAA lawyers to the Justice Department.

Under the current administration, the entertainment industry has managed to push through scenarios considered impossibly overreaching just a few years ago, including this summer's announcement that ISPs would have to police their own customers and adopt a "graduated response" to piracy allegations.

And the industry only grows bolder--one can easily imagine, given the inflammatory language of SOPA, that the MPAA simply wrote it up and handed it to its purported author, Rep. Lamar Smith. After all, the bill's enormous collection of regulatory burdens would seem to create internal conflict in a representative who is otherwise against enormous and expensive collections of regulatory burdens.

As opposition rightfully grows against SOPA, the attempts by the MPAA to prop it up feel even more desperate and cynical. A press release today quotes the Fraternal Order of Police discussing the importance of stopping "rogue Web sites" from creating and selling counterfeit gloves and brake pads that could put police at risk, worrying over counterfeit pharmaceuticals and tooth paste that "put our seniors and our children at risk," and pointing out that "organized gangs" profit from counterfeit DVDs and then use those ill-gotten gains to wreak havoc here at home. I suspect the FOP understands the legislation they're supporting about as well as Rep. Smith does.

The situation is, in a nutshell, ludicrous. And it's long past time to put a stop to this slow and steady corporate villainy, and the politics that keeps enabling it.

Act now, as the EFF says, and let your representatives know that SOPA and Protect IP are unacceptable. And if that fails ... Occupy Sunset Boulevard? I'll get my tent ready.

 

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