I’m not one to talk about politics in the open, because it causes a number of problems. However, this is something I have to speak out about.
As many already know, the US senate and Congress both introduced bills that would severely limit free speech and free expression online. These Bills, the PROTECT IP Act in the senate and Stop Online Piracy Act (SOPA) in Congress, have severe implications for everyone that uses the internet.
These bills are very similar in nature, and I’d like to give a brief overview of both.
The Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, or PROTECT IP Act (S968), is the bill introduced in the US Senate by Virginia Senator Patrick Leahy. The bill defines copyright infringement as “distribution of illegal copies, counterfeit goods or anti-DRM technology,” or when “facts or circumstances suggest [a website] is used, primarily as a means for engaging in, enabling, or facilitating the activities described.”
So, basically, the copyright infringement occurs when users distribute bootlegs, knock-offs, or ways to work around DRM. Sites that help distribute this sort of material are to be seen as engaging in copyright infringement. Existing copyright and trademark laws wouldn’t be altered, though the bill extends provisions to enforce existing American copyrights and trademarks against “rogue websites” that are registered and ran overseas and domestically. The bill gives the US Department of Justice the right to acquire court orders against the owners of websites “dedicated to infringing activities,” or the sites themselves in the case that an owners can’t be located.
Now here’s the scary part. Once the court order is issued, it can be sent to the following entities:
- Financial Transaction Providers (payment gateways and services like PayPal)
- Internet Advertising Services (Sites like Google Ads)
- Internet Service Providers
- “Information Location Tools” (search engines like Bing and Google)
Once this happens, all of these entities are required to stop all financial transactions and stop linking to them. Furthermore, search engines are required to “feasible and reasonable measures, as expeditiously as possible, to remove or disable access to the Internet site associated with the domain name set forth in the order,” and remove all hyperlinks to said site.
Domain Name providers would be required to take all feasible steps to keep users from reaching the alleged offending site’s IP address via DNS, in the case that a site is found in court to be “dedicated to infringing activities.” The website can still be reached via the IP address (that’s a permenant fixture). On top of this, all copyright holders that have been “harmed by the activities of a website dedicated to infringing activities” can file for a court injunction against the website, to force the listed services to stop processing financial transactions and serving ads, though they can’t force a full shut-down.
The definiton of a “rogue website” is incredibly broad, and includes sites that host legitimate content, that may contain links to copyright infringing sites, thanks to user comments or other outside influences. Reddit, Facebook, and YouTube, for example, could and would be seen as “rogue websites.” And, under the PROTECT IP Act, they would be forced to radically change the way they operate, or simply disappear from the internet entirely.
Nearly every anime site could feasibly be seen as a “rogue” operation. We all make use of licensed images, video, or content from some source or another. Our screen grabs, package shots, and even trailer feeds are the intellectual property of content providers. So, for example, this video of ADV Films’s trailer for Full Metal Panic! Fumoffu?, since it’s not distributed by the content provider, would be “infringing content”:
FUNimation holds the US rights to the show. And, while it is highly unlikely, FUNimation would be within their power to file a complaint with the justice department to receive an injunction. If, for some reason, they couldn’t contact me to set a court date, I would be judged against as a default of court proceedings, and would be de-listed from all major services, effectively being silenced from the web even though this site focuses entirely on legal, self-produced content.
In another example, let’s imagine that a Twitter user posted a link to a site that hosts scans Batman graphic novels on a social media site. Technically, if Warner wanted to proceed, they could gain an injunction from the courts to have Twitter site de-listed from search engines, and send word to advertisers to ensure that they don’t see another cent in revenues until an appeal is processed through the courts. Even then, if the judge somehow determines that the twitter folks media service is somehow distributing bootlegged material – because again, Batman is owned by Warner, and technically a copyrighted character, and the site contains numerous user-aggregated links to infringing material – everything, from their web address, to any reference goes away. This would therefore make it effectively disappear from the web.
This would effectively place websites into restricted speech, stifling innovation and, most important, stifling the free exchange of ideas. While the intent seems benign on the surface, this can be used to silence users under the guise of IP infringement, which would have a chilling effect on the web as a whole.
SOPA (HR3261) is.. well, as of this writing, SOPA has officially been “shelved”, actually. This means that it won’t be brought up to the House floor for an official vote until there is a consensus on its final form in committee. So, for the most part, it’s dead in the water until people forget about it.
However, it’s basically a more restrictive version of PROTECT IP. It incorporates many of the same provisions as PROTECT IP, with the following additional provisions:
- Content owners can directly contact the payment gateways, advertisers, search engines, and other sources in order to cut off revenues to the offending websites. These providers will have five days to act, before the offending site is taken down.
- Payment proessors will have the power to cut off service to sites they work with, so long as they can provide a strong case of why it is infringing on copyrights.
So, in the same situations, the copright holders would be able to bring about a site shut-down, without going to the courts. This would place incredible power into the hands of the copyright holders, which already have avenues to enforce copyrights through existing means.
However, as was mentioned before, this bill was shelved for now, so we needn’t worry about its passage. Details were merely included as a means of education.
Anyway, PROTECT IP (and formerly SOPA) presents a case at an attempt to create an instance of regulatory capture, in which the regulatory system designed to protect public interest is co-opted by commercial or special interests to dominate an industry. The private sector would be granted the power to kill rising technologies and innovative business models that offer value to the end user.
Looking through history, if legislation such as PROTECT IP were around in the heydey of emerging technologies, the very industries looking to gain from this bill today would have been able to kill the following:
- Video Cassette
- Audio Cassette
- Digital Music (MP3, iPods, etc.)
- Digita video (YouTube, Netflix, etc.)
- Cable television
- Digital Video Recorders
Mind you, I’m not somebody who feels that copyright should not be enforced at all. As someone who has seen damage from over-abundance of fansubs, as well as widespread piracy in the anime industry, I do agree that something needs to happen in order to stop the bleeding. However, this is far from the right way to go about it.
As a whole, humans respond to positive reinforcement over negative. Making them feel good about what they do will always win over punishing swaths of innocents over what the vocal minority does. And, quite frankly, the ones they’re seeking to do away with can (and will) find ways around the regulations within a week as it is. This bill will do little more than to frustrate the average user, while stifling an emerging digital economy.