By Skwerl at 11:54 AM Monday, December 12th 2011
Cash Rules Everything Around Us, The Truth
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.
If either SOPA or PIPA companion bill S.978 were to become law, certain forms of streaming would become a felony. The motivation here is the fact that currently, criminal copyright law only covers reproduction and distribution, while performance (which is what online streaming is considered, in a legal sense) remains a civil matter. Going after the uploaders isn’t enough for the labels. This legislation aims to make it a crime (a felony!) to stream, and, mind you, sharing a YouTube link on Facebook is streaming. Tumbling or even reblogging a video is streaming. The reason for this is current laws just haven’t been enough to kill the blogs that simply stopped uploading MP3s.
You may have noticed that there’s a disproportionate amount of Hip-Hop sites caught up in these trawls of alleged insurgents. We don’t think it’s because they’re run by Black people, but we’re not so sure it’s by coincidence either. Over the past 5-10 years, more so than in any other genre, it’s Hip-Hop blogs that have emerged as the new radio for fans across the genre’s whole spectrum, from the mainstreamers down to the backpacker crowd. The effect is that every day, little by little, the major labels lose more and more control over what becomes popular.
In case you’ve been living under some sort of digital rock, a ton of people still do discover their music via FM radio, and the radio industry still is driven primarily by barely obfuscated payola. And Hip-Hop blogs are the single most clear and present threat to that system. Right now, they represent the beginning of the end of what TuneCore CEO Jeff Price and ex-Rykodisc president George Howard called the last stronghold of the majors. They lost control of perpetual copyrights when Pro Tools came along and enabled any artist to make their own recordings. They lost control of distribution when music stores went online. They lost control of publicity when artists started engaging the directly and effectively on Facebook and Twitter. All they have left is the stream of cash that keeps “big time” radio in their corner.
All of the evidence shows that making copyright law more strict doesn’t decrease infringement at all. In some cases, it’s been shown to lead to more infringement. The only forces that have proved capable of decreasing infringement have been new businesses that legally offer the convenience and utility that consumers have come to expect. But the ability to shut down websites at mere will is not about enforcing the ample piracy laws already in place. It’s not about piracy at all in fact, despite what its supporters would have you believe. And at this point it very obviously has nothing to do with protecting artists. It’s about maintaining control. This is a desperate attempt by the entertainment industry to erect a dam to hold back the internet, in their continued war on innovation.
And that’s why it’s not enough to just go after the people who are leaking and uploading. To regain control of the industry, short of rethinking their obsolete business model (god forbid), they need to be able to stop anyone that does so much as point a finger in the general direction of that which they do not want seen.
What’s really ironic is that the whole point of copyrights and trademarks is to enable competition and innovation. Intellectual property law exists to make sure that if Bob Dylan writes a great song, he owns it. Even if someone comes along and sings it better, they still have to pay Dylan for suffering the life experiences that enabled him to write it. When Apple invents the iPod, the investment of R&D is returned when the product is a success and IP laws ensure that only Apple gets to sell iPods. If any other company could just put together the same parts and sell the same thing, there’s no incentive to spend time and money inventing new things. If you want to compete, you have to put in the effort to make something better. If you succeed, you win the next round, your competitors go back to the drawing board, America gets a new export to wave in other countries’ faces, and you get a cool new toy to wave in your neighbors’ faces. This is the circle of technology, as taught in Silicon Valley kindergarten classes.
The sad fact that these bills are even being considered can be attributed to corrupt politicians, whose betrayal of America, her companies, and her citizens has become painfully obvious.
Several of the country’s largest companies are fighting this; Politico reveals that Facebook, eBay, Amazon, Yahoo, and Google have spent $29.3 million in lobbying between 2010 and 2011, all a part of the so-called NetCoalition that opposes the bills. Yet the entertainment industry’s lobbying budgets over the same time period dwarf that figure nearly ten-fold, with $279.5 million spent. Over the weekend, TechDirt broke the “shockingly unshocking” story that two of the congressional staffers that helped write SOPA & PIPA, Lauren Pastarnack and Allison Halataei, have been offered cushy, high paying jobs with the MPAA and NMPA, respectively. It may be legal, but it ain’t right. It reeks of 1999, when congressional staffer Mitch Glazier, who snuck a tweak into some legislation that stripped all recording artists of their copyrights, found himself the Senior Vice President of Government Relations and Legislative Counsel for the RIAA a few months later, with a $500,000 salary. You scratch my failing business model’s back, I’ll give you a shitload of money.
Fortunately, it’s not all doom and gloom and doom and gloom. There is a hero, one Ron Wyden from the beaver state, who not only is demanding that the Department of Homeland Security explain exactly what the fuck happened to Dajaz1, but has also singlehandedly put a stop to PROTECT IP with a bold Senate hold. He’s clearly going nowhere politically, but bless his golden heart. He’s even co-written an alternative bill, complete with a competitively contrived acronym: The Online Protection and Enforcement of Digital Trade Act, or OPEN.
Unlike SOPA and PIPA, OPEN wasn’t drafted in shady closed-door sessions. OPEN has been posted to a public website that invites comments and discussion. And it’s a sleek 18 pages, focusing only on the core issues. SOPA, by comparison, has about a dozen different substantial proposals scattered across 78 pages. And it can be hard to debate a bill like that, as you often have opposing parties talking about two or more different things simultaneously, and far too many deviations to make productive discussion possible. Perhaps this occurred to you while watching the discussion on Colbert; Zittrain was talking about the felony streaming aspect, while Justin Bieber fan Danny Goldberg was talking about the cutoff provisions.
TechDirt, as per usual, has a great in-depth review of the OPEN bill. Some of it is good, and some of it is not so good. But its open nature enables what will hopefully be a truly democratic evolution for the better. With that said, it fixes the worst problems of SOPA. It doesn’t mess with DNS or search engines. It introduces at least some due process. It puts the targeting in the hands of the International Trade Commission, and it actually requires “marked” websites to be notified of their status and given the opportunity to correct any problems and appeal their “rogue” designation.
OPEN also attempts to define what a rogue site actually is: A US business with a foreign registration, that “has only limited purpose or use other than engaging in infringing activity and whose owner or operator primarily uses the site to willfully engage in infringing activity.” Meaning, you know, it really does have to be clearly, demonstrably dedicated primarily to criminal activity.
Furthermore, OPEN excludes sites that follow good notice-and-takedown procedures, and/or that qualify for DMCA safe harbors for user-generated content (meaning it works with the DMCA rather than eliminates it, as SOPA threatens to do).
Ultimately, it’s hard to shake the feeling that OPEN will do little more than call the entertainment industry’s bluff, as our theory is that SOPA and PIPA are really about killing competition rather than what its supporters claim it’s for, and what OPEN would do at least as well, which is protecting intellectual property. It may fall by the wayside, sort of like the cheeseburger you offered that wino that “needed money for food.” And that may be for the better or for the worse, but either way it will go to show just how full of shit the entertainment industry and its lobbyists were when they were trying to convince you that all of this was about protecting the artists.
It’s possible that all of this might make some of you want to go occupy something and take some pepper spray for the team. Or maybe you’ll want to boycott RIAA music, and MPAA movies, and do some protesting with your wallet and BitTorrent client, from the comfort of your own proxy server. A couple of you might want to start an armed and violent revolution on municipal property while blasting the Korn & Skrillex album. We get it. We can’t officially condone any of that, but we totally get it.
We’re just here to help you identify the enemy. On the following page is a list of the 70 congresspeople who have sponsored these bills. This is the congress that has been sold by you to the entertainment industry. Some of them may only be ignorant or misguided, and come election day you may find them to be the lesser of two evils. Use your judgment. But hold them accountable.
At the top of the list is House Judiciary Chairman Lamar Smith, who sponsored SOPA, and invited only one representative from Google, just one of the bill’s many opponents to testify against five of its supporters; a massacre of a hearing in which Google was basically attacked as a proxy for the so-called worst of the worst offenders. This guy is a serious asshole.
In the Senate, Vermont Senator Patrick Leahy sponsored PROTECT IP. Vermont, how could you?
And remember Lauren Pastarnack and Allison Halataei, the newest Mitch Glaziers, who were rewarded by the lobbyists they served by molesting our democratic process.
On the other side, standing up for common sense is the aforementioned Ron Wyden from Oregon, and OPEN’s co-writer, California representative Darrell Issa. Look at that smile. What a good dude. Write your representatives, and tell them they should Friend him on Facebook and stuff. He’s probably got the hookup on some really good legal weed. They should all get together and talk about America.
In the meantime, I will leave you with a song that conveys the frustration we’re all feeling here. But you can dance to it, and you should. Because you can, as long as there’s no money in taking away your right to do so.
UPDATE: Representative Lamar Smith updated SOPA with some minor clarifications today. It still sucks. Meanwhile, our buddy Ron Wyden has released a nonpartisan congressional study showing that the entertainment industry is as healthy as ever.
Rep. Lamar Smith [R-TX21]
Mark Amodei [R-NV2]
Joe Baca [D-CA43]
John Barrow [D-GA12]
Karen Bass [D-CA33]
Howard Berman [D-CA28]
Marsha Blackburn [R-TN7]
Mary Bono Mack [R-CA45]
John Carter [R-TX31]
Steven Chabot [R-OH1]
Judy Chu [D-CA32]
John Conyers [D-MI14]
Ted Deutch [D-FL19]
Elton Gallegly [R-CA24]
Robert Goodlatte [R-VA6]
Tim Griffin [R-AR2]
Tim Holden [D-PA17]
Peter King [R-NY3]
John Larson [D-CT1]
Ben Luján [D-NM3]
Thomas Marino [R-PA10]
Alan Nunnelee [R-MS1]
William Owens [D-NY23]
Dennis Ross [R-FL12]
Steve Scalise [R-LA1]
Adam Schiff [D-CA29]
Brad Sherman [D-CA27]
Lee Terry [R-NE2]
Debbie Wasserman Schultz [D-FL20]
Melvin Watt [D-NC12]
PROTECT IP Sponsors
Sen. Patrick Leahy [D-VT]
Lamar Alexander [R-TN]
Kelly Ayotte [R-NH]
Michael Bennet [D-CO]
Jeff Bingaman [D-NM]
Richard Blumenthal [D-CT]
Roy Blunt [R-MO]
John Boozman [R-AR]
Sherrod Brown [D-OH]
Benjamin Cardin [D-MD]
Robert Casey [D-PA]
Saxby Chambliss [R-GA]
Thad Cochran [R-MS]
Chris Coons [D-DE]
Bob Corker [R-TN]
Richard Durbin [D-IL]
Michael Enzi [R-WY]
Dianne Feinstein [D-CA]
Al Franken [D-MN]
Kirsten Gillibrand [D-NY]
Lindsey Graham [R-SC]
Charles Grassley [R-IA]
Kay Hagan [D-NC]
Orrin Hatch [R-UT]
John Isakson [R-GA]
Tim Johnson [D-SD]
Amy Klobuchar [D-MN]
Herbert Kohl [D-WI]
Mary Landrieu [D-LA]
Joseph Lieberman [I-CT]
John McCain [R-AZ]
Robert Menéndez [D-NJ]
Bill Nelson [D-FL]
James Risch [R-ID]
Marco Rubio [R-FL]
Charles Schumer [D-NY]
Jeanne Shaheen [D-NH]
Tom Udall [D-NM]
David Vitter [R-LA]
Sheldon Whitehouse [D-RI]