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Daily News, General Musings, Op-Ed

Why SOPA? Why Now?

Via marineinsight.com

What web users see today via Marineinsight.com

Today is the day of the Great Internet Blackout.

Websites, blogs, message boards, search engines, etc. are limiting content or displaying badges of protest as a means of speaking out against the Stop Online Piracy Act.

This legal blog is commemorating the day with this post, and addressing the questions of how we got here, and why there is so much animosity.

The answer to the latter should be relatively obvious. SOPA threatens to change the internet for the worse. Drastically so. Many people believe that it will facilitate a broader internet censorship campaign by the government, while we believe that most of the censorship will come from large media corporations shaping the internet via frivolous and malicious ex parte hearings against individuals and small businesses. 

These hearings, would allow corporate giants like MTV’s parents, Viacom and National Amusements to shut down sites like Thejsfl.com without the first bit of notice and would result in the site’s temporary, and possibly permanent, loss of control of its domain. This represents a deprivation of property with minimal due process, and apparently no set standard of proof required; making it almost a given that a mere complaint would result in a loss of the domain.

The hearings would, no doubt, also be the prelude to a lawsuit aimed at crippling the offending party, rather than making the content producer whole for the alleged, and likely erroneous (especially in the case of the JSFL), copyright violation.

There are, of course, many more reasons for hating SOPA.

However, the question of how we got to the point where internet-wide protests are necessary remains unanswered.

We can start with this article from the U.K. by Andrew Orlowski of The Telegraph. Orlowski paints the picture as being the fault of nerds and tech firms for not attempting to work with content producers to create a set of rules, or “enforcement measures.” To wit:

Nerds may hate the fact, but Sopa is only here because no voluntary agreement is in place. The Googles and Facebooks have never seen an enforcement measure they like – when you ask them, they go awfully quiet. So we get enforcement measures nobody really likes. [Telegraph]

To read the comments on his article, you would think he hung a banner out somewhere that said, “Hurray censorship! F-U Internets! ROFL!” His commenters miss the point, as I believe that many would, but I think that he is close to how SOPA came to be.

In the dark ages of the internet, people had access to some pictures, music files that might or might not be .mp3 format, and .gifs. After the .mp3 file emerged as the popular file type things changed. People could share these files just like they could silly and/or pornographic pictures. And share they did. People had little idea that sharing like that could be illegal. After all, they were still buying CDs and all they were doing was copying what they bought on to their computers.

Who knew?

The recording industry. And they took down Napster and a slew of other file sharing sites, culminating in the corrupting of The Pirate Bay.

Napster was years ago. And now people know at their heart of hearts that sharing like that is illegal because it mass reproduces work that content providers, like recording artists and record labels, plainly have a right to and should be selling.

One of the biggest problems with the Stop Online Piracy Act (and Protect IP), and the part that it seems people complain about the most, is the lack of a distinction between legal and illegal sharing. This is where Reddit, YouTube, Wikipedia, and every other site that relies on linked pictures, articles, and videos would be in trouble.

This lack of a distinction means that a website that links to another that has merely been alleged to have supported piracy could be harmed.

Rumblings of this kind of legislation have been around for a while.

Beginning with the Digital Millenium Copyright Act (DMCA) people were saying that our rights on the internet were being chipped away. In some ways they were right, but now that it is the norm, we can see that people retained more or less all of their internet rights, and the DMCA became more of a set of rules or guidelines than anything else.

When the DMCA was created people and special interests lobbied against it, but there were simply no giants to step into that fight. Even Google was still competing with Yahoo!, Lycos, Alta Vista, Ask, and numerous other search engines; many of which it now owns.

Even Facebook did not exist until 2004.

Basically, there was no one to say anything until about 2010, and now that there are special interests, they took their damn time saying anything. They also have taken their sweet time developing “influence” over politicians like Lamar Smith, one of the key supporters of the bill, who has been operating hand in hand with the entertainment industry for a while now.

The result of all of that is legislation that was written by various groups within the entertainment industry, and politicians that admittedly know nothing of the subjects involved, that could allow content producers to rule the internet with an iron fist via the threat of multi-million dollar lawsuits and/or influence over the Department of Justice.

While these protests are far from what Andrew Orlowski sees as “childish,” they are long, long overdue.

The silence on behalf of the major players on the internet has allowed things to get where they are. They allowed issues like what to do about picracy that could have been hashed out around the time of either the DMCA or Napster battles to sit unresolved.

 Fortunately the internet, for now, is the internet that everyone knows and loves. It is also the internet that was responsible for two populist revolutions, which means even though web-based companies have sat on their hands, they still have the ability to throw money and popular sentiment behind an effort that would overwhelm most other special interests.

To put it as Tim Wu, professor from Columbia University Law School recently did for the New York Times:

This is the first real test of the political strength of the Web, and regardless of how things go, they are no longer a pushover… The Web taking a stand against one of the most powerful lobbyers and seeming to get somewhere is definitely a first.

Everyday Counsel continues to support responsible anti-piracy legislation, and to that end must oppose SOPA, PIPA, and other version of those bills that does not consider leaving the basic freedoms provided by the internet intact.

About E.C.

Corporate and regulatory attorney. Also experienced in advocacy for the mentally disabled and minor litigation matters. Not currently practicing, but maintaining the blog to keep my research and writing skills sharp. Splitting time between Connecticut and Massachusetts.


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