Thursday, 15 December 2011

SOPA Opera

Imagine this scenario. You go to a library and borrow a book, and let your friends read it before you give it back. But you and your friends should have bought it, rather than free-load. The book is taken from you, the library is closed. Nobody reads any more, or is inspired to write their own work.

Over in that America, a bunch of ageing multimillionaires, under the influence of corporate lobbyists, is about to pass the Stop Online Piracy Act, which will do exactly that, online.

Under its proposals, copyright holders could apply to the courts to block any website carrying copyrighted material, and prevent online payments to any such host. There are justifications for such a move: I'd like musicians, actors and other creative people to be paid for their work. But from the bits of research I've seen, active illegal downloaders are also likely to buy more films and music than non-downloaders. Musicians know this: that's why every website has a few Youtube clips.  People try a few tracks, then buy some. Or they watch a few minutes of a pirate movie and then go to the cinema to see it on a big screen.

However, this law will extend American authority over pretty much the entire online world. Many of the world's websites are hosted in the US, and virtually all of them are visible in the United States. Regardless of where a server is, this allows the US courts to apply American copyright laws throughout the world. Any US service (Google, PayPal, ISPs) would be compelled to block access to these sites by Americans. This is a huge infringement on free speech. Imagine a site like 4Chan or BoingBoing: one person posts a clip, a court order is secured, and access to their entire, multi-authored magazine-style site is forbidden.

Furthermore, copyright is not always clear: witness recent examples of major Hollywood TV companies suing Youtube for copyright infringement while other departments of the same companies are uploading leaked clips for promotional purposes. Fair use is another problem: if I quote one of the excellent (or not so excellent) novels I've recently read in the course of a critique, will Plashing Vole be closed down? One of my students has uploaded videos of her performing popular songs: will she be prosecuted for disseminating proprietary material, or is it her performance, rather than the song, which is the work of art? Could she block Vole through the American courts if I embed footage of her criminal records (boom) on my site? Is a LolCat image an infringement of the copyright held by the original photographer, or is the image + hilarious text a new piece of art?

Practically, the law is an ass. Several million clips are uploaded to Youtube per day. All the lawyers in the world couldn't review each one to identify which ones are copyrighted and which aren't. Would SOPA prevent piracy? Absolutely not: serious pirate sites would get around American blocks within minutes. Domain name blocking would be circumvented in seconds by tweeting the numerical website address or simply changing names, while hosters could easily switch to offshore DNS providers.

What happens in the case of an individual posting material which is out of copyright in her home country, but in copyright in the United States?

No wonder one American legislator described this as 'the end of the internet as we know it': a newspaper explained this further:
 "Imagine the resources required to parse through the millions of Google and Facebook offerings every day looking for pirates who, if found, can just toss up another site in no time."

Another problem is culpability. Under the proposals, the staff of a host are liable: whether you're a secretary or a CEO. You might have no idea that copyrighted material is hosted on your service, but if you play any part in running the company, you're guilty. If only bankers operated under these conditions!

How would ISPs prevent you from accessing banned sites? Easy: they'd have to inspect every single user's internet traffic: an immense use of power, bandwidth and a massive invasion of privacy. Why not simply get copyright holders to require hosts to remove copyrighted material? If a writer doesn't like me quoting from her book, Blogger can mail me advising me of the complaint. I can accept or argue fair use, and we can agree or go to court. Under SOPA, an American court can make my host block access to my site without any discussion. If my host doesn't constantly monitor my postings and visitors, it is guilty of allowing copyright evasion, which seems monstrous.

What kind of company does the US legislature wish to keep? During the Arab Spring, the White House openly encouraged American companies to provide protestors with work-arounds to counter blocking software (ironically, mostly designed and sold by British, Israeli and American companies) used by oppressive regimes. Such work-arounds, like proxy services, are exactly the kind of thing which will be blocked by SOPA. Other governments might use the same arguments to block American sites which promote freedom of speech, women's suffrage, sexual equality and the like. What happens when Wikileaks publishes copyrighted material showing - as an imaginary example - how a company proposes to spy on people on behalf of the US Government? The site will be blocked. Search engines won't be able to link to it. Donations will be blocked (this has already happened, without court action). It's not only repressive: it's insecure. Universal's attempt to use copyright to prevent discussion of its disgraceful behaviour will become standard practice.

Of course, this law won't simply apply to clips and music. An American would be prevented from viewing forum posts which may infringe copyright, interfering with the right to receive information:
Second, the bills allow the government to obtain blocking orders without an adversary proceeding, which means that the right of U.S. citizens to receive information from abroad would be denied, without any real test of the merits of the infringement claim. To be clear, this process is unconstitutional even though the originators of the speech are outside of the United States (though, in some cases, the originators could be U.S. residents, e.g., folks posting comments on a foreign site’s forums), because the First Amendment protects our right to receive information as well as send it. Tribe points to a chilling parallel in a Supreme Court case which held that the Post Office could not keep a list of U.S. citizens receiving “communist political propaganda” (which, of course, intimidated those citizens from doing so) even though the “propagandists” were located abroad.
Imagine an America condemned to an eternity of Fox News.

A long time ago, John Milton wrote Areopagitica. In it, he opposed the pre-licensing of newspaper articles by governments as an attack on free speech. Instead, he wrote, one should publish and be damned: allow publication, then argue about it in court later. That way speech is free while piracy is punished. He didn't envisage a world of Paris Hilton sex tapes, TOWIE or Lolcats - but he'd defend your right to wallow in them, and the American Society of News Editors agrees.

Almost 400 years later, I can't see any flaws in this argument.

1 comment:

Grumpy Bob said...

I've been following the SOPA trainwreck for some time now, and fully agree with you. The global censorship will dwarf the efforts of China et al.