By Catherine A. Fitzpatrick
Silicon Valley is leading a shrill, hysterical and even mendacious charge against legislation called Stop Online Piracy Act (SOPA) that would attempt to stop piracy on the Internet that is costing us billions of dollars a year in theft and loss of livelihoods. Tumblr is even outrageously forcing people to view a fake "censorship" notice as if this is something that will be "coming soon" if SOPA is passed. Naturally all the geek propaganda outlets from TechDirt to Mashable to ReadWriteWeb are going full tilt screaming about this bill, claiming it will "break the Internet" and its "culture of sharing" and lead to "draconian" censorship in which innocent individuals who have done no wrong will be mercilessly punished, or people who have copied only small amounts of content illegally will be brutally prosecuted. All fake. All hyperbole. All *deliberate* hyperbole -- because that's what works in our insanely emotional twitterverse and that's how cynical tech lobbyists try to manipulate popular opinion.
Andrew Keen has opposed this insanity better than I could, with all the reasoned arguments he's been making for years, since writing his book The Cult of the Amateur. His opponents claiming that he is only reciting what some SOPA lobbyist says ought to be ashamed of themselves, given his long career and credible body of work in print and on the Internet on this issue, and given their own shallow and ignorant regurgitation of Google lobbyists' memes.
I know it's really getting outrageous when I see not only Cory Doctorow *lie outright* about a Congressional hearing and claim that there are "no" opponents of the bill testifying -- when Google (!), the largest of the Silicon Valley lobbyists on this issue -- is included (Eric Schmidt, executive chairman himself) -- but when I also see all the kids on my daughter's Facebook screeching about "Internet censorship" and screaming that "the government" is going to come and take away their Tumblr blogs (!) and "Fuck America" because of this evil Chinese-like censorship (!). It's truly insane -- and even sinister -- when they do this.
Many of the tech blogs today are spreading this fake meme: that SOPA would involve *shutting down all of Facebook -- all of it! for 700 million people!* or *all of Tumblr* or *all of Twitter* if "only one" person is found uploading a pirated movie. It's absolutely insanely loony as there's absolutely nothing of the kind in this bill's intent, or wording, or implications.
Of course, these people aren't troubling themselves to read the bill. The intent of the bill is to go after pirates -- primarily "notorious" foreign pirates as it states -- not teenagers' Tumblr blogs. The intent of the bill is to punish those who knowingly, for commercial purposes, in large amounts, for significant amounts of money, gain financially for piracy. Not Facebook chatters and tweeters.
Read this section, from the bill:
‘‘(1) IN GENERAL.—Any person who willfully infringes a copyright shall be punished as provided
under section 2319 of title 18, if the infringement was committed—
‘‘(A) for purposes of commercial advantage or private financial gain;
‘‘(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, or by the public performance by means of digital transmission, during any 180-day period, of 1 or more copyrighted works, when the total retail value of the copies or phonorecords, or of the public performances, is more than $1,000; or ‘‘(C) by the distribution or public performance of a work being prepared for commercial dissemination, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial dissemination.
‘‘(2) EVIDENCE.—For purposes of this subsection, evidence of reproduction, distribution, or
public performance of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.
So the possession of one copy of a pirated movie on your email, or a URL linked to your twitter, or on your Youtube account, is definitely DEFINITELY not going to lead to wrongful prosecution. Anyone claiming this absurdity is wilfully lying in order to get their way -- and that alone is the scariest part of this massive tech lobbying offensive.
When I see the ACLU misrepresent the law in this fashion -- the ACLU which is supposed to have sharp lawyers and supposed to have a reputation for upholding the Constitution -- I really have to wonder how bad things have gotten in the NGO sector around these issues. It's just insane. Whipping up insane fears of prosecuting people for their copies of Twilight episodes -- nuts.
Again, the *bill is aimed at piracy sites -- sites that do a large volume of distribution of copyrighted works unlawfully for financial gain*.
In all the shrill and hysterical pieces about this issue from the tech press, you see this other mendacious technique -- a claim that because the bill involves requiring that service providers remove content, that it will take away their "safe haven" status or undermine the progress of the DMCA legislation. Of course, the DMCA approach is a sop, especially for the individual content creator or small business who can't afford litigation -- it doesn't work and doesn't provide remedy. Its failures are part of why we have this legislation.
But repeatedly, the bill contains headings that say NO DUTY TO MONITOR. Correct me if I'm wrong, but I take that to mean that large services like Facebook or Youtube don't have to do pre-clearance or monitoring constantly and intrusively for copyright infringement. What they must do is what they already have to do and which complies with their own terms of service -- they must *respond to complaints* and take down material *when asked*. And here their own discretion operates as it always has -- human intelligence is at the helm of the implementation of this Internet bill, a factor that most geeks analyzing it fail to acknowledge, due to their own increasingly machine-adapted binary thinking.
The bill talks precisely of the mandate "to take technically feasible and reasonable measures." Technicall feasible! Reasonable measures! Shutting down the entire servers of Facebook (as if something like that would even be technically possible or advisable) would not constitute a "reasonable measure" or even a "technically feasible measure".
Under the sections on DEFENSE, the bill speaks of an acceptable defense if the service provider "does not have the technical means to comply with this subsection without incurring an unreasonable economic burden." So obviously Facebook would incur an unreasonable economic burden if it were to shut down its servers even for a day; so would Tumblr. Given checks against overweening prosecutorial powers built into the law like this, I really have to wonder how any tech lobbyist right now can claim with a straight face that this bill would require entire services to shut down over one person's infringing content or even 100 persons.
There's many other false claims being made about this bill:
1. It causes Internet censorship
This is breathtakingly bad-faith argumentation which I've been opposing for years -- because it turns the notion of real censorship (which technically can only be made made by governments, not companies) on its ear, and converts protection of intellectual property rights falsely into a restriction on speech. We saw how with "net neutrality," the geek lobby turned what is a classic case of a negative right -- the demand that a government not censor your speech -- and tries to convert it into a positive right -- to a demand that the government supply you with endless bandwidth, free movies, and other free stuff, forever -- and if it doesn't, it is "censoring" you. This is a logical extention of that false paradigm, claiming that the government's efforts to pursue intentional and criminal distribution of content for commercial gain can somehow be transmuted to harassment of individuals with a single copy or even a link.
It implies that free speech is the equivalent to downloading pirated movies, or, more cunningly, implies that if someone talks about where you get those pirated movies with a URL link, *that* secondary expression will be punished and censored. There's no evidence of this in the bill's intent or language and it's hard to imagine how even if it were, it would be policed. Having the government filter all email and Internet usage? But the government will not be undertaking this insanely expansive and expensive and *unnecessary* chore. It's going to go after *sites that engage in piracy, i.e. large amounts of distribution of infringing content for commercial gain*. And that's ok.
A friend of mine who is an ardent SOPA opponent put it like this: if I have a link to an illegal Harry Potter movie, or a Harry Potter movie on my blog as a download, somebody who doesn't like my blog could get the entire thing shut down. I find this a really stretched edge case of the sort we're long familiar with from the hackers of Second Life and their Fisking and literalism. There are remedies in the bill and defenses. And these are readily apparent as I've noted above.
Eric Schmidt also mendaciously tried this route as well:
`The solutions are draconian,'' Schmidt said during an appearance at the MIT Sloan School of Management. ``There's a bill that would require (Internet service providers) to remove URLs from the Web, which is also known as censorship last time I checked.''
The old snarky hackers' forum meme, dripping with scorn -- "last time I checked". Well, last time I checked the text of the bill, Eric, I saw that the *intent of the bill* is to go after piracy sites (and illegal drug sites), not every Google search. I'm failing to see what's wrong with removing the ability of sites to resolve domain names to URLs that are in fact by definition these pirate sites -- i.e., not "my Tumblr blog" or "my Facebook page".
And indeed, the entire drama incited by big IT on this hinges on the hyperbole and the outright lies about how it will be enforced precisely to stampede teens on Tumblr and geeks on Twitter to send emails to their congressmen or even call them (perhaps for the first time in their lives) even though they aren't old enough to vote, and of course, to get thousands of geeks to call their Congressmen (although five minutes ago, chiming in with Occupy Wall Street, they were saying that representative democracy should be overthrown; that it is all bought out by evil lobbying interests; that change can only come from radical resolution and not legislation. Hah!
2. The bill did not involve technologists and is written by dummies who don't understand the complexities of the Internet.
We've been treated to the particularly annoying cacophany of the smug young geeks on Twitter who snark that the poor audio on the hearing was a function of congressmen who "are like your parents trying to turn on a VCR" and claims that Congress people are ignorant of technology and are writing a bill without understanding the complexities of the DNS and such.
Of course, they themselves are too ignorant even to read the bill -- they don't read any texts longer than the screen in front of them or the span of their hand. And of course technologists *have* informed this bill and it has extensive references to how technology does work.Again, read the damn bill -- it's been discussed in various iterations forever, and everyone has had their whack at the wording. This is a classic geek dodge, by the way, claiming that because somebody wants to do something they don't like or is against their interests, that they are technologically inept, and only "the right technology" or "the right knowledge" about gadgets will make it all right. Bullshit.
I'm going to call this out on a more simple level, as well. Congress need not be technically proficient, as it can hire experts. But more to the point, it's ok to have non-technical civilians not immersed in the depths of technology *applying basic legal principles to the Internet*. Geeks act as if the Internet is this magic octupus that does all these magic things and connects everybody freely with its tentacles for free and generates profits out of its ass -- for free. But the Internet is just a road or a pipe or a wire. It's not special. The property and commodities on it are not magic -- they're just in a digital form. The principles of property and law apply -- you never claim that you can't criminalize burglary because a thief can pick a lock, so there's absolutely no reason in hell not to criminalize piracy and attempt to make good locks. We get it that thieves pick locks and on the Internet, hackers circumvent and hack and copy. So what? It can be stopped. As Jaron Lanier has often said, "the Internet is this way because we made it this way," speaking of his fellow engineers. So make it different.
3. The bill will create a giant firewall around the United States like the great firewall of China.
What's particularly hilarious is to see the pious tech gurus telling us that "the US will have a firewall around it" -- although only yesterday they were telling us the "impossibility" of stopping copying; that DRM "can't work"; that anything can be hacked; that the Internet routes around; that it's better simply to give away everything for free because you can't stop piracy. Huh? So we went from a massive copying machine to...suddenly the Chinese-style firewall around the US because of a...bill?
Everyone acknowledges in this discussion that massive amounts of pirating goes on. There's a minority that says pirating should be blessed and decriminalized. Most of the guru influencers, however, are trying to take the pretend high road and say they are "for stopping piracy" or they "support the goals but not the means" of this bill. But in fact they never explain how they would stop pirating, and they never explain how they imagine we will go, in a day, from a regime with massive piracy, to a regime where....massive numbers of kids with Tumblr accounts are going to be "censored." They don't explain how that would REALLY work *technically*. And we all know it's a technical impossibility -- and no language in the bill supports this preposterous notion, in fact.
So what changed? Suddenly, there's magic new technological prowess on the part of the government? Suddenly, the government couldn't stop massive pirating today, and tomorrow it's going to be able to do this? Of course it won't *technically* and we get it that it will be hard, mistakes will be made, and it won't work.
But I'll tell you what changed: political will. And that is a wondrous thing to see here. Finally, after a decade of destructiveness, with the movie, music, newspaper, book and related industries nearly destroyed, with even government WikiLeaked, we are going to turn the corner. The fictitious movie-version of Sean Parker, in saying that "we used to live on farms, then the city, now we all live on the Internet" is right -- but living here means we have to be able to have the same livelihoods we had on farms and in the city.
We shouldn't have to retreat to collectivized tribalism or communism to live in the modern world on the web; we should be able to have livelihoods as individuals or companies where our content can be sold and not coercively "shared" and where intellectual property rights are protected.
4. Critics of the bill haven't been sufficiently heard.
That's actually not true when you have Google, the giant, testifying!
But so what if "only Google" got to testify in this hearing in which supporters of the bill testified. Good! I'm definitely for rectifying an imbalance we've had for years where the din of the copyleftist congregation has been all that has been audible on this subject.
We've had a decade of incredibly loud, shrill, persistent and even vicious insistence that "information wants to be free" and that everything can and should be copied and copyable for free -- with little ability to fight back and challenge these deep-rooted hackers' memes. Ordinary people represented in Congress have not had their say. The rest of the world outside the hothouse of Silicon Valley and its rapacious needs -- which feeds billions to a few oligarchs and provide very few jobs for people even as it destroys other sectors' jobs -- has not had a chance to democratically participate in decision-making about this incredibly powerful sector making people more and more dependent on it. So if the ardent opponents aren't given their say here -- good! They've had a say for ten years or more of web 2.0, gouging value far and wide, destroying property and "liberating" content for the financial benefit of the few, and now it's time to hear the other side.
I will never forgive the Electronic Frontier Foundation and other copyleftist lobbyists for their mendacious and *deliberately* cunning misuse of the notion of "censorship" around this issue -- undermining the real meaning of the word which has to do with governments taking away free speech by force of journalists and bloggers and writers. It's obscene to compare what happens to an artist in China or a student in Syria or an activist in Belarus with the inability of someone to download their Lost episode.