There are two bills making their way through the United States Congress that supposedly aim to eliminate unauthorized sharing of copyrighted content online, by censoring the internet. In the House of Representatives, there’s the Stop Online Piracy Act, also known as SOPA. The Senate has the absurdly acronym-ed Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, also known as the PROTECT IP Act, also known as PIPA.
We’re going to tell you why they suck, and we’re going to reveal the real reasons they were written.
To say that these bills have some flaws would be… sarcastic. If these bills become law, uploading just one of Michael Jackson’s songs to the internet could put you in jail for longer than the guy who killed him. They essentially authorize nuclear strikes against any internet domain that appears to be hosting anything that any entertainment company thinks it might own and possibly not have authorized, and/or just doesn’t like, without any of that annoying “proving it in court” hassle. According to Harvard Law professor Jonathan Zittrain, if SOPA was law three years ago, Justin Bieber might still be serving his sentence for covering pop songs on YouTube, as he told Stephen Colbert:
Supporters of the nuclear option dismiss such what if scenarios as paranoia, but if you read the bills, you’ll find no invitation for due process to provide checks and balances in the interest of preventing mistakes or preventing such ludicrous scenarios from becoming a reality. A copyright holder could shut down an entire website indefinitely simply by accusing it of infringing. These are poorly written, unconstitutional bills, written by lobbyists, that would establish a policy of guilt until proven innocent, and deprive US citizens of liberty and property without due process of law.
And if you’re inclined to believe the supporters that promise this law won’t be abused, understand that less aggressive existing laws are already allowing rights holders to turn our justice system into extensions of their disorganized carnival funhouses of ineptitude.
TechDirt broke a story on Thursday involving a Hip Hop blog called Dajaz1 that was seized by the US government’s Immigrations and Customs Enforcement division after a “technologically inept recent college grad” did nothing more than file an affidavit. Out of just four songs that were named as evidence of infringement in this affidavit, three had in fact been sent to the blog by authorized representatives of RIAA labels (even a “major music label” VP in one case), and the fourth came from an artist not represented by RIAA at all. Carlos Linares, VP of Anti-Piracy Legal Affairs for the RIAA, signed off on this “evidence,” never having bothered to check whether the songs were in fact posted illegitimately, or with proper authorization, or even if RIAA had any right to file any sort of claim at all.
Yet a judge read the affidavit, said “seems legit,” taking RIAA’s word for it all, and approved the seizure of the domain.
Now, US seizure laws, in a nutshell, say that when the government seizes property, it has 60 days to notify the owner, who then has 35 days to appeal for its return, at which point the government has 90 days to either file for a forfeiture ruling, or return the seized property to the owner. However, it would be more than a full year before Dajaz1 was returned, at which point the government finally admitted there had been no probable cause to begin with. TechDirt has all of the infuriating details on how this was possible; Essentially the court granted the government mysterious extension upon mysterious extension, all filed under seal, with the US attorney refusing to provide the site’s lawyer with any proof that such extensions even existed, let alone any sort of justification for them.
Another story starts with the claim by supporters of SOPA & PIPA that it’s only evil “rogue sites” that will be in the crosshairs of these bills, rather than honest bloggers and future Justin Biebers singing covers on YouTube. Yet in October, the MPAA submitted a list of such “rogue” sites, and they included legitimate services such as MegaUpload and the Google-owned Xunlei, alongside more qualified troublemakers such as The Pirate Bay and Demonoid.
MegaUpload’s hilariously audacious response was a 4 minute original “Mega Song” featuring the likes of P. Diddy, Will.i.am, Alicia Keys, Kanye West, Snoop Dogg, Chris Brown, The Game, Mary J. Blige, Kim Kardashian, Floyd Mayweather, Jamie Foxx, and others, all singing about how great MegaUpload is.
Despite the fact that Mega paid for and owned every byte of this 100% original production, UMG filed a copyright claim against YouTube to have the video removed, despite having absolutely no legal right to do so; an abuse of the system that moved Mega to oh so wittily refer to UMG as a “rogue label.”
Are we really expected to believe the MPAA and RIAA and their studios and labels when they insist that these sites need to be shut down “for the artists,” as the artists speak up in support of them, only to then be silenced through blatant abuses of the laws… that we’re being told need to be expanded?
Let’s take a look at how SOPA and PIPA define, or rather neglect to define, exactly what a “rogue site” is. SOPA is so broad that for a site to be considered “dedicated to the theft of US property” all that needs to be shown is that it “enables or facilitates” infringement. That’s as specific as it gets. Any website that allows users to upload content could be found to be dedicated to crime in a court of law.
PIPA attempts to target only foreign sites, but it does so by expecting extraordinary cooperation from US service providers such as ISPs and search engines, who could face liability for being unable to effectively assist the government in censoring the internet as fast as such demands are made, mind you without any process of diligence. PIPA uses the same, broad “enabling or facilitating” language as SOPA.
Defenders of the bills claim that they are only trying to deal with the “worst” offenders, but the reality is that neither bill addresses what that actually means in any specific terms.
Viacom’s lawsuit against YouTube continues, in which Viacom’s portrayal of YouTube as a “rogue enabler” bears quite a resemblance to the descriptions of the targets of these bills. Meanwhile, Universal Music, Warner Brothers, and Paramount were three providers of a list of “sites dedicated to infringement” requested by advertising giant GroupM, and that list included SoundCloud and Vimeo, as well as such indisputably constructive good guys as the Internet Archive, Quincy Jones’ Vibe Magazine, Complex (one of the most valuable startups in New York City), and even Universal Music recording artist 50 Cent’s own personal website (which just so happens to be a little more popular than Universal’s own “official” 50 Cent site).
Audio cable manufacturer Monster Cable put together a list of rogue “counterfeit dealers” as well, in support of PIPA, which included eBay, Craigslist, Costco, and Sears, along with search engines like PriceGrabber and consumer rights sites that investigated the real value of Monster Cable’s premium products and compared them against alternatives.
So who are the “worst” offenders? Apparently, everybody. Here’s the criteria: Would the entertainment industry be able to make more money if you didn’t exist? If the answer is yes, or even maybe, you are stealing from them. You evil terrorist.