(Cross posted at reason.org)
It’s rare when the entire Internet industry rises up with one voice. Perhaps that’s why the protest against the House of Representatives’ Stop Online Piracy Act and its Senate counterpart, the Protect Intellectual Property Act (PIPA), is getting so much attention. In policy circles, usually one segment of the online industry is jockeying for favorable position against another. Today, with Wikipedia dark, Google taped over, and a host of other sites large and small raising awareness through home page notices, New Media is drawing its line in the sand against the most astounding government overreach into Internet regulation to date.
The bills amount to good intentions gone awry. True, sites that sell brand-name counterfeits and offer illegal downloads are easy to find and no honest user advocates intellectual property theft. But SOPA and PIPA are extremely coercive and heavy-handed, and as both bills have percolated up through the legislative process, opposition has steadily mounted. There have even been outright turnarounds. The Business Software Alliance, a strong supporter of antipiracy measures and an initial backer of SOPA, reversed its position upon examining the bill.
SOPA and PIPA essentially place responsibility-and cost-of policing the Web for IP violations on the shoulders of Web site owners through an electronic version of prior restraint. The law would require Internet service providers (ISPs) to take steps to prevent their customers’ web browsers from connecting to alleged pirating site. Search engines like Google would have to scrub alleged pirating sites from their search results, or else disable links to them. Web advertising delivery systems would be required to block distribution of banners and links. Finally, sites which revolve around user-generated content, such as Facebook and Wikipedia, would be liable for any pirated content or link posted by any one of their millions of visitors.
How do the bills define a site that’s counterfeiting products or pirating copyrighted content, or one that allows users to link to them? Not very specifically. The bills’ vague language gives the Justice Department enormous leeway with a very light burden of proof in designating offenders. In sum, the bill would give the FBI and federal prosecutors to power to declare illegal any site they don’t like.
It is not the least bit alarmist to call this censorship. If either SOPA or PIPA were to pass, for the first time, the U.S. government would be able to block what Americans can access via the Web. Even the provisions against Internet gambling did not go as far (you could still get to a gambling site, you just couldn’t transfer money to it). Bottom line: the bills propose ISPs and search engines deploy the same type of Internet blocking mechanisms used today by authoritarian regimes in China, Iran and Syria, just to name three. Worse, when a democratic system such as ours engages in it, it provides these governments with political cover.
This is not to give short shrift to the problem of IP theft. But we have other methods for dealing with the issue that don’t trample free speech or due process. The Digital Millennium Copyright Act ensures that copyright can be policed and protected on music download sites and video sharing sites such as YouTube. But it requires the property owner to take responsibility. As for the complaint that much of the Web’s IP theft originates off-shore, then perhaps the best course is for the U.S. government, as a representative of its citizens, to work through diplomatic channels and with international law enforcement and to bring offenders to justice. It’s harder, and it doesn’t generate headlines for politicians, but it respects the rights of Americans, and that should trump convenience.
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