What's so bad about SOPA?

Should this man get paid for his songs?  (Yes.)
Update (1/19):  I was happy to see this from Brian Leiter today:  "it seems to me that cyber-space is under-regulated by the law, which explains why it has become a repository for so much garbage, defamation, and invasion of privacy, as well as copyright violations.  (It's a shame, but predictable, that only the latter really gets the attention of Congress.)  SOPA and PIPA may be problematic responses to some of these problems, but the knee-jerk opposition of cyber-libertarians, who readily turn a blind eye to all the ugliness of cyber-space, is itself suspect in my view."  My reaction exactly. 


I am, I have to say, out of synch with all the passionate opposition to SOPA. The underlying problem of internet piracy is serious.  The New York Times says 95% of music downloads, globally, are illegal.  That means a vast number of musicians and songwriters are not getting rightful compensation for their work. As I understand it (see links at the end of this post), SOPA lets copyright holders go after "the middle man" -- the only solution, since it's impossible to shut down foreign sites like The Pirate Bay, and also impossible to go after individual "pirates".  The "middle man" is, for example, the search engine that helps people find The Pirate Bay, and profits from searches that people do on that phrase.  SOPA lets a copyright holder petition a search engine to stop directing traffic to piracy sites.  Another "middle man" is Pay Pal, which facilitates payments to operations like The Pirate Bay, not by downloaders (of course) but by advertisers that make the operation profitable for its owners.  There are a lot of folks not at the "sender" or "receiver" end of illegal downloading, but who nevertheless enable these transactions to take place.  Should the enablers really continue with impunity? 

Now, SOPA may be the wrong tool for the job.  Maybe it hits too hard, or too broadly, or in such a way that illegal downloading won't decrease. It may be bad legislation--I'm not sure, because there's a lot of fine print, and I haven't digested it all yet.  But the goal is a good one, and the basic idea of targeting the middle man makes moral and practical sense.  I would understand opposition to SOPA, if it were a question of details, efficacy, side-effects, etc. but the zeal of the opponents make me wonder if they really appreciate that creative artists ought to be protected from internet theft.  The opponents strike me as being way too sure the sky is falling and they throw around the word "censorship" too casually.  All measures that prohibit speech are not censorship -- in any morally significant sense.  Surely we already do stop the middle man from enabling child prostitution and child pornography, and if we don't, we should.  The first amendment was not designed to protect speech like "Get your very own little sex slave at kiddiesex.com"-- a sentence (with link) that's merely a conduit to illegal behavior, not the expression of an opinion about that behavior.  Search results that take people to illegal piracy sites seem about the same.

OK, it's a complicated bill, and you have to be "for" all of it, or else against it.  I'm only for the thing in principle, not for it line by line (I haven't studied it line by line).  So go ahead, if you think specific SOPA provisions are unacceptable, have at it.

P.S. Wonder what all the fuss about?  Here are some links: 

Pirate Bay
Wikipedia blackout
Google doodle
SOPA explained "What it is and why it matters" (CNN)
New York Times editorial
Supporters of SOPA
Opponents of SOPA


Geoff Arnold said...

Three words: NO DUE PROCESS

If someone is convicted of a crime (and copyright violation is a crime), or of criminal conspiracy, or aiding and abetting a convicted felon, fine: yank their DNS records, nuke their search results from Google. But to require the "middle man" to act on the mere say-so of a complainant, with no legal process, is antithetical to constitutional -- and common -- law.

Alan Cooper said...

Clay Shirky says it pretty well in his TED talk (and in Canada, Michael Geist and Howard Knopf cover the legal issues for us).

Basically, these proposed laws reverse the burden of proof with regard to alleged copyright violation. This both takes away the right of due process and has the effect of adding prohibitive costs onto the shoulders of the providers of self-publishing services. If you believe in the concept of "innocent until proven guilty" then you should strongly object to these misguided travesties.

J. J. Ramsey said...

Even without SOPA, we already have problems with due process. One blogger had his web domain seized for over a year, because the FBI did a botched job of checking that he had permission to post his content -- which he did. SOPA would take that already present dysfunction and amplify it.

One of the other reasons for the uproar over SOPA and PIPA had been the DNS filtering provision, which only recently were struck down. This provision was opposed by Sandia National Laboratories, among others, because it would break Secure DNS.

Deepak Shetty said...

And ofcourse there is the technical problem. if you are Google and you need to crawl the entire internet , almost nothing in your operation can be manual. So while they can react to complaints, proactively filtering out sites with pirated material is really only going to be as good as the algorithm you come up with. Too strict an algorithm penalizes legitimate sites who can suffer revenue losses.(and surely the law operates on no innocent should be punished even if a few guilty go free)
so it isn't legitimate to call Google a middle man who facilitates finding pirate sites.

Deepak Shetty said...

But the zeal of the opponents make me wonder if they really appreciate that creative artists ought to be protected from internet theft.
Not all creative artists agree
with whats being done.


Draconian laws have always been misued.

faust said...

I think the hysteria around SOPA has been awesome to watch. The level of group-think has been positively stunning, and frankly quite creepy.

Because it touches on my professional life I've read bill and the propaganda that has been leveled against it cannot be justified.

I do think the process objections have weight, but if that was all that these protests were about we would be having a technical discussion of process. But that's not at all what the SOPA hysteria is about: it goes much deeper and has to to with some very large scale ideological and economic battles going on in our culture.

While I can't commend every single point he makes, I am broadly in agreement with this fellows position.

Jean Kazez said...

Cool, I'll read that tomorrow. I'm happy to see that we're on the same page, especially because you actually know what you're talking about!

David Duffy said...

I think the objections are roughly:

There is already sufficient targeted legislation eg current Megaupload case

Existing legislation (DMCA) is already used inappropriately by some corporations eg EFF White Paper. This new legislation is seen as more easily abused.

The technical difficulties add expense and inconvenience for an innocent third party: the US ISP or search engine.

The blocking of a site is coarse, so innocent users of the site are affected (eg recent US case where it was upheld that 10% of lawful users of a torrent site were being adversely affected by a takedown order IIRC).

It reverses the onus of proof, and would be expensive for a foreign entity to legally challenge.

faust said...

Here's another read on anti-SOPA, includes some a (very) brief critique of Clay Shirkey's demagoguery.


Deepak Shetty said...

Contemplate Megaupload indeed - a site that was shut down without the need of SOPA or PIPA.

But let me ask you this
Google provides an email service. Is it Google's responsibility to monitor what you email your friends? If someone believes that you are misusing your email for piracy or other nefarious activities , what evidence do they need to provide before Google takes action against you. And if you replace email service by a file upload service , what has changed?

Jean Kazez said...

Faust, Good article. It's nice to see it at a solidly liberal site like The Nation. I can't fathom why liberals have all lined up on the anti-SOPA side.

Faust said...


I'm not sure why people think the argument "Megaupload was seized therefore SOPA is unecessary" has any weight at all. The Megaupload case is being prosecuted under current law, but 1) until the case is settled it's not going to be clear exactly what the extent of current law is (e.g. how the case relates to DMCA safe harbor provisions, if there are any jurisdictional issues) and 2) even if it turns out that the case results in conviction, there are clearly infringing sites that are completely outside of current law (that is to say that, unlike megaupload, they have no infrastructure in the US, no personnel in the US, and are located in countries unwilling to assist in the case).

Indeed SOPA is precisely the attempt make cases like Megaupload less uncertain, and to take domestic laws that allow the seizure of domestic sites, the kind seized in Operation in Our Sites and extend some of those powers so that they can be used against a site “being operated in a manner that would, if it were a domestic site, subject it (or its associated domain name) to- (A) Seizure or forfeiture in the United States.” (H.R. 3261 Section 102(a)(2))

Now as to whether those additional powers overreach, or are technically feasible is a different question, a question which can and should be debated at length (whether the bulk of the people protesting the bills actually understood what the relevant issues were is yet another question).

Faust said...

To your second point, I don't think that there is any question that SOPA is an attempt move from an ex post to and ex ante regulatory regime. As near as I can tell some people think that this shift would automatically create "censorship" but that doesn’t necessarily follow at all. We have all sort of existing ex ante regimes around botnets, malware, and to some extent pornography. The REAL debate is about what constitutes “free speech” and exactly to what degree copy-RIGHTS interact with free speech RIGHTS. That’s an area that distinguished legal scholars can debate on, but it’s a complex conversation and not one that can be summed up with casual use of the term “censorship.”

To see one example of this kind normative distinction applied to DNS blocking see Paul Vixie’s discussion of COICA. Here Vixie explains “I can agree that it's worth perturbing the whole Internet ecosystem to wipe out a domain that's being used for the distribution of Child Abuse Materials I simply cannot agree that this level of perturbation is warranted for the protection of intellectual property.” But his reasoning here is clearly based on his evaluation of harm, NOT on the technical question. OK to block childporn, NOT OK to block copyright infringement. That’s a judgment being made on a non-technical vector.

All of the preceding is really just to say: this stuff is complex. What was so disappointing about the SOPA debate was that the level of discourse did not match up with the complexity of the issues. To be fair the bill advocates are to blame for this as much as anyone. For years the outreach and positioning efforts of the big media production companies have been inept at best. But there are other forces as work here. People like to think that this was a “spontaneous” uprising. That’s not what I saw. I saw mass response triggered primarily by the “blackout” of Wikki and Google and the latter is a big funder of the former, and hardly a disinterested party. One hears that the big bad MPAA came to Washington D.C. to shut down cultural expression and censor the little guy. But there is more here than the standard narrative would have you believe.

Jean Kazez said...

Faust, Thanks for those very thorough and clear answers. So I see there's new legislation called OPEN and the NYT supports it. They seem to think it's better than SOPA. I have no idea--but hurray for keeping the issue alive and pursuing stronger protection for copyright holders.


Faust said...

OPEN is Google's way of making sure the DMCA safe harbor laws are preserved, i.e. making sure they incur no secondary liability for infringement. I haven't had a chance to look at it closely yet, but I doubt that a Google written bill (in the same sense that SOPA was an MPAA written bill) is going to do the trick. I think it's funny that they named it OPEN. It's almost like they put a brand name on it.

David Duffy said...

Faust opined: "OPEN is Google's way..."

I can't see much evidence that the Wyden and Issa legislation is Google's (in terms of campaign contributions etc).

The supporter list on the bill's website includes several large Internet-based companies, the American Library Association...

Maybe we can say that Google does support anti-piracy legislation that looks more technically feasible and fairer, and as such is not a "piracy leader".

Faust said...

I think Google supports legislation that ensures it will not incur any secondary liability for copyright infringement and that this remains its primary goal. The structure of "OPEN" makes sure the internet stays "open" meaning that no ex ante regulatory regime gets introduced.

Using open secrets it looks to me like WilmerHale LLP is the top contributor to Issa, and WilmerHale is funded by Google and publishers.

In any case your linked page just proves the point: the technology companies are all DCIs (Digital Content Intermediaries) and this simply proves the point that the fight here is between DCIs who want to preserve the status quo as much as possible, and content creators who want stronger enforcement options (not to mention the Consumer Electronic Association which has never really cared about strong copyright for rather obvious reasons--they supply technology that does copying). When I say "Google" I really just mean "DCI." Google just happens to be THE DCI in a pond of other DCIs

The connection between libraries and technology companies is interesting and is connected to the way those organizations hook up to fair use debates, as well as other debates around copyright. Libraries obviously have a mandate to spread knowledge far and wide and for this reason map well to the goals of DCIs.

It's as I said in my first comment: this debate is about "very large scale ideological and economic battles going on in our culture." There is no one clear answer, because we are talking about law and economics that go to the very nature of what kind of culture and economics we are going to have.

Faust said...

Google Google everywhere.