TOTH: Good intentions, bad bill

The events of the last week have been an example of the democratic process in action. Congress proposed a bill, and people didn’t like it. Instead of the usual outcome — that is to say, moneyed special interests successfully obfuscating the issue and Congress bending to their influence — people did something. With the help of websites like Wikipedia, Google and Reddit, people became aware of what was happening. Some even called their congressmen, successfully persuading many publicly to disavow their support for these bills.

I’m talking, of course, about the Stop Online Piracy Act. SOPA was written in an attempt to curtail copyright infringement and help safeguard intellectual property rights. However, despite these legitimate concerns, SOPA epitomizes the reckless infringement of the intellectual freedom Americans have enjoyed since the Declaration of Independence.

SOPA is well-intentioned legislation and we should support its goals. But its draconian methods are cause for concern. While protection of intellectual property should be one of our foremost concerns, SOPA violates fundamental rights in order to achieve those goals.

Though many people have expressed their belief that this bill is bad, few have offered an easily understandable explanation of how it effectively renders websites inaccessible.

First, under SOPA, the Attorney General can petition a court for an order to require United States-based Internet service providers, payment processing companies (like PayPal) and advertisement networks to stop doing business with websites named in the order. The order could also prevent search engines such as Google from displaying links to these websites. These orders would apply even if the website isn’t based in the United States. Essentially, unless you’re an exceptionally tech-savvy consumer, you won’t be able to access a website after these measures are implemented.

Second — and more worrisome in practice, if not in principle — SOPA allows private corporations to accuse websites of infringing on their intellectual property. If they do so, the same process occurs, and access for the average user again becomes impossible.

In principle, this is not a bad idea. Few people dispute that downloading a movie from a less-than-legitimate source, without payment, is copyright infringement. But few understand that copyright infringement is not stealing, as the Supreme Court ruled in 1985 in Dowling v. United States. Any response to copyright infringement ought to be congruent and proportional to the offense.

In practice, SOPA simply makes it too easy for websites to be shut down, even if they aren’t actually infringing on intellectual property rights and could win a court battle on the facts. Fighting a large firm in court is cost-prohibitive. Firms with large budgets for litigation can easily win wars of attrition against smaller websites simply by dragging on court cases long enough to bankrupt or frustrate websites with legitimate ends.

Third, SOPA attempts to enforce United States law worldwide. Penalizing a foreign website for failure to follow United States law presents severe problems with respect to national sovereignty. The cross-border nature of the Internet makes for an interesting problem in a world politically organized in a system of nation-states.

The answer to this problem is not simple. In fact, I’m not sure if there is really a good answer. But there are a few things that are certainly true. First, the United States cannot and should not attempt to apply its laws worldwide. The only sustainable way to attempt to regulate copyright infringement is through international cooperation and agreement. Second, making it easy for large companies to win protracted legal battles against smaller firms stifles innovation. Revolutionary products don’t often come from large established firms but from small startups like Microsoft, HP, Google and Apple — all of which were founded in garages.

Governmental overreach has already reached a head. Yesterday, the U.S. government seized over $50 million in property and arrested the owners of Megaupload, the popular file-sharing site, accusing them of copyright infringement. They face prison terms of up to 55 years each.

It’s important to note that Megaupload’s owners committed no acts of copyright infringement; the site had many legitimate purposes, though users often used it in order to illegally download copyrighted content. In essence, the owners are being asked to take responsibility for the content that their users post, even though the current law regulating intellectual property on the Internet, the Digital Millennium Copyright Act, explicitly disowns that practice. If this isn’t an example of governmental overreach and disproportionate response, I’m not sure what is.

Benjamin Franklin wrote, “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” SOPA is an example of just that. Censoring websites for the sake of protecting ourselves from perceived harms is a dangerous path that can only lead us down the road to totalitarianism.

Patrick Toth is a sophomore in Morse College. Contact him at patrick.toth@yale.edu.

Comments

  • River_Tam

    This article is flat-out ignorant.

    The charges against MegaUpload are VERY distinct from what SOPA deals with.

    Specifically, there is evidence that MegaUpload gave money to people who uploaded popular, copyrighted works. Moreover, there’s very clear evidence that MegaUpload employees shared copyrighted works internally. There was an effort to steal YouTube’s content. To top it off, the system that MegaUpload implemented for “takedown” of copyrighted works was in fact nothing of the sort, since it only removed one URL identifier of a copyrighted work. The way that MegaUpload works, if the same file is uploaded multiple times, only a single copy is stored and a new URL is created for each time it’s uploaded. When a takedown was ordered under the DMCA, MegaUpload merely removed the specified URL, not the underlying file.

    Kim DotCom (the owner of MegaUpload) has an extensive criminal past (look him up) and clearly and intentionally profited from encouraging the piracy of copyrighted content. The charges against him include the allegation that he owned and profited off of a network of megaupload link aggregators (you know, those sites you find that let you find megaupload links) that specifically linked to copyrighted works. Any way you cut it, he was intentionally making money off of copyrighted content.

    SOPA is not about MegaUpload. Conflating SOPA with what MegaUpload is charged with is journalistically irresponsible and ignorant.

    • anon12

      Agreed here. Without more more evidence in the Megaupload case, saying that ‘It’s important to note that Megaupload’s owners committed no acts of copyright infringement’ is a very irresponsible statement. (Especially given Kim Dotcom’s past history and some of the information presented in the indictment )

      Read this article for a more balanced look: http://arstechnica.com/tech-policy/news/2012/01/why-the-feds-smashed-megaupload.ars

      It may be that the government has overreacted and may be entirely in the wrong. But either way, its frustrating when people conflate pro ‘hacker’ bandwagoning with the legitimate cause of protecting internet freedom and privacy.