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The big hammer of SOPA, PIPA will only crush Internet freedom

This screen shot shows blacked-out Wikipediwebsite announcing 24-hour protest against proposed legislatiU.S. Congress intended protect intellectual property thcritics say could

This screen shot shows the blacked-out Wikipedia website, announcing a 24-hour protest against proposed legislation in the U.S. Congress, intended to protect intellectual property that critics say could facilitate censorship, referred to as the "Stop Online Piracy Act," or "SOPA," and the "Protect IP Act," or "PIPA." (AP Photo/Wikipedia)

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Updated: February 21, 2012 8:25AM



Wednesday, Jan. 18th marks the day when many workers were far more productive and many know-it-alls were a far less smug about themselves. And suspiciously so, in both cases. Many of the Internet’s most important sites and services are going dark for 12 hours to protest the progress of the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA) through the House of Representatives and the Senate.

The list includes Reddit, the great pulse of the Web; BoingBoing, barometer of culture; even the English-language edition of Wikipedia will go away for a bit and then come back after an important point has been made: like any other web, the worldwide web of the internet is a frail, fragile thing that can easily go away. We mustn’t take it for granted. And we sure as hell shouldn’t allow it to be broken by terrible, misguided legislation that serves the interests of one commercial industry and which shunts hundreds of millions of Americans into a form of second-class world Internet citizenship.

It’s been a couple of months since SOPA and PIPA became hot-button buzzwords of the Internet. How best to describe what they do? It’s tempting to come up with an analogy to describe what it’s meant to do and how it’s meant to go about it. But that’s dangerous; I’m convinced that an over-simplified analogy is what caused it to make as much progress as it did.

These laws were designed by the Motion Picture Association of America and the Recording Industry Association of America, and they have relentlessly (and expensively) been lobbying Congress for increasingly powerful tools to stop digital piracy. Piracy’s a serious problem. If any consumer wants to download a pirated copy of “Tintin” or any other movie in release, they can truly start with zero knowledge and methodically accumulate the knowledge, the addresses, the software tools, and then the movie itself in less than a day. That’s bad. Outrage against SOPA and PIPA shouldn’t sweep aside the obvious ethical, legal and monetary problems inherent in content piracy.

Piracy hosted by US-based sites is actually under control. Sites like YouTube aren’t required to police what their users do, so long as they have a process for reviewing and removing pirated content after the copyrightholder calls the violation to their attention.

The US system works. SOPA and PIPA are designed to deal with sites that are outside of US jurisdiction. I imagine the MPAA and RIAA’s lobbyist making it So Very Simple to lawmakers.

The argument

“There are simple, logical, and effective laws that protect other industries from foreign pirated products,” he says, “be it counterfeit bags, drugs or car parts. The government can prevent them from entering the country in the first place. And if the products make it through, it’s possible to arrest those involved — everyone in the entire distribution chain, from the point of origin to the point of sale to the consumer. We can shut down their business and freeze access to their accounts.”

“We’re not asking for unusual protections for digital content,” he concludes. “We just want the same legal tools for fighting digital piracy as other industries have for physical piracy.”

When you put it that way, it almost sounds . . . sane.

Why it’s wrong

But no, it’s a lame analogy. Digital content is its own thing; clumsy, analog-style analogies are the stock and trade of liars on both sides of these debates. Lobbyists claim that digital piracy is no different than a break-in at a brick and mortar store, both in terms of the dollar cost to the industry and the best ways to combat it. Meanwhile, spokespeople representing the radical anti-copyright We Don’t Like Paying For Stuff movement (mascot: a Dyson vacuum, or a least a photo of one that was downloaded from a Google Image search and used without license) insist that it’s impossible to “steal” something that never physically existed to begin with.

We can do away with misleading analogies. SOPA and PIPA (which only deliver parts of the total package the Associations want) are simply wrong.

Start off with the marquee-level power of the Acts: with these laws in place, copyrightholders can complain to the US government, who can then issue a court order that simply makes the offending foreign website invisible to any user in America.

Whoosh! That whole site disappears. After a site’s been placed on a government blacklist, search sites like Google will be prohibited from showing search results from that source, and your internet service provider must block all access to that domain name.

This approach won’t slow piracy. The domain name system only matches easy-to-remember words to hard-to-remember sequences of numbers, just as the names in your phone’s address book match “Bob Kefauver” to “312-555-1212.” Typing the blocked domain name wouldn’t get you to the site, but plugging in the address would have still worked just fine. If ISPs were forced to block even direct-address access, they’d need to intercept and examine all of your Web traffic to the slightest detail, which is (a) wholly impractical and (b) not quite legal.

No, the sole real effect of this DNS tinkering would have been to weaken the security and privacy of the Internet. It would force all ISPs to handle DNS in a way that would make future enhancements and protections damned-near impossible to implement without violating he law.

Number one on that list: DNSSEC. It’s an improvement to the worldwide DNS system that makes it much harder for criminals to trick your web browser into sending you to the wrong site . . . a site that looks like your bank’s online portal, but is actually there to steal your account login data. DNSSEC is being implemented worldwide, but it couldn’t be done in the United States because it doesn’t comply with SOPA/PIPA. Even the head of the House Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies has come out saying that SOPA undercuts efforts to secure the Internet, joining experts from every branch of the Office of People Who Actually Know What They’re Talking about.

And what constitutes theft of intellectual property, anyway? Without a physical object that can be removed from an actual store, it’s a tricky question.

Is it theft?

Let’s use my comics as an example. There are lots of sites that host unauthorized scans of comic books. Name a comic that was published within the past 10 days and I can probably point you to a link from which you can download a free, unlocked copy, usually hosted on foreign sites.

Well, okay: that’s definitely theft. But I’ll warn you: the answers get trickier from here on out.

I read about thirty or forty comic strips every morning via a webapp called The Darkgate Comics Slurper. It visits the sites of each of my favorite strips, grabs the strips, and puts them in a custom RSS feed that I can read with Google Reader instead of visiting dozens of URLs manually.

Is that theft? Maybe not. Darkgate isn’t republishing and redistributing the material so much as it’s just acting as a better kind of web browser for this kind of content. The “Yes, it is” argument points out that Darkgate divorces the strip from everything that makes it profitable (site advertising, and offers to buy other work by the same creators). Hmm.

(Don’t try that URL today. It’s one of the many that have gone black to protest SOPA.)

How about The Comics Curmudgeon? Josh Fruhlinger makes daily comic strips like “Mary Worth” and “Mark Trail” readable and enjoyable the only way that any mortal man can: by mocking them. This involves reproducing the strip he’s making fun of. Okay, he’s definitely downloading and re-hosting content . . . but it’s a form of commentary and parody. We’re all thinking “protected under the ‘fair use’ exceptions of copyright law” here, right?

The Non-Adventures Of Wonderella? It’s at nonadventures.com but don’t bother . . . SOPA blackout. Definitely check it out later. It’s a funny adventure strip featuring a superheroine who’s clearly based on Wonder Woman. Okay, this one’s easy: it’s clear parody. The only slight complication is that it’s an ongoing parody, and the creator sells books and merchandise featuring the character. But no, we still reach for the “Fair Use” rubber stamp and then move on.

In reality, all of these sites would be unaffected by the legislation. They’re hosted on US servers. The point is that there are, like, lots of sites hosted outside the U.S. and the question of “what constitutes a copyright violation?” is open to such a wide interpretation that abuses of these powers are almost inevitable.

Heavy-handed risk

We’ve already seen what can happen. In December, Universal Music Group abused YouTube’s anti-piracy filters to have a popular video pulled despite a complete lack of any infringing content. The video was in support of Hong Kong-based file host Megaupload (which often hosts pirated material) and it featured an all-star cast of recording artists. YouTube soon put the video back online after a review, but then UMG had another video pulled: an episode of the TWiT Network’s (Ed. note: Andy co-hosts MacBreak Weekly, a TWiT program) nightly newscast “Tech News Today.” Why? Because the show aired a clip of the Megaupload video during their reporting. Again, YouTube quickly reinstated the video after a review.

This incident demonstrates how easily powers like these can be abused to control speech on the Internet. Any topic, take your pick: any discussion of any musician, celebrity, politician, product, service . . . any of it can be taken down by a sufficiently-offended party who can claim, however lamely, that the content violates a copyright.

Both the Megaupload and the TWiT videos were taken down and then reinstated by a company with a speedy reviews policy. Under SOPA/PIPA, there are mechanisms to evaluate and reinstate a blacklisted domain. But it’s a long and expensive process and by the time justice prevails, enough time can pass that the momentum behind a conversation or even a whole site can be completely killed . . . assuming that the affected site can even afford to mount a defense.

SOPA and PIPA also prohibits any technologies that can successfully be used to interfere with the application of the blacklist. So an anonymity tool like Tor becomes a big problem; it masks the IP address of the original source and hides the trail between a series of intermediate anonymous hops. Tor is popularly used by oppressed groups worldwide to safely speak out against local corruption and violence. Its users aren’t trying to hide from the MPAA . . . they’re trying to conceal themselves from the local chief of police who’ll likely kill them on sight for criticizing the government. Under SOPA/PIPA, none of that online traffic would make it into the U.S. with its anonymity intact.

It’s yet another example of the widespread collateral damage that would result from cutting off the United States’ access to the real, free, unrestricted Internet.

What’s next?

SOPA and PIPA have been making progressively-denser stinks over the past couple of months as more and more people have examined it and seen how poorly-built and over-reaching they are. Sponsors are backing away. Popular and influential sites are protesting. The White House has released a fairly strong statement against SOPA and PIPA.

(In response, the MPAA has released a statement that can be described as “hysterical,” creepily insinuating that every site that’s joined in on the January 18 blackout protest should be investigated by the government for antitrust violations. I am now seriously suggesting that Jack Valenti’s old office be evacuated until environmental inspectors can examine the MPAA’s suite for some sort of gas leak. I suggest that they wear hazmat suits with independent oxygen supplies.)

The components of the bill that tinker with DNS have already been withdrawn. But SOPA and PIPA aren’t dead, by any means. The White House statement clearly communicates a hope that this kind of legislation will reappear in an improved form later this year.

I’m not necessarily opposed to legislation that offers functional and specific tools for combatting piracy. But I’ll certainly continue my opposition to SOPA and PIPA if they return with the same two fundamental problems:

1) They redefine the Internet for the whole United States of America.

If the success of the Internet can be attributed to one basic principle it’s this: information should move freely from one place to another without restrictions. That’s not a hippie-dippy drum-circle philosophy, either. It’s simple engineering. It’s the reason why Google, Wikipedia, Amazon, Twitter, The Comics Curmudgeon, and all of the other sites I love and rely on happened. Good ideas get to prove themselves in front of the worldwide Internet community immediately, and they’re adapt to changing needs.

SOPA and PIPA redefine the Internet as “the place where copyrighted materials are protected.” This new American Internet is estranged from the rest of the world and designed to serve the needs of one single commercial industry. Defending against piracy becomes the prime directive; things can happen here on the American Internet provided that it couldn’t somehow be seen as potentially in conflict with the interests of the MPAA and the RIAA.

To put it more simply: the current definition of the Internet is one of “Yes, do that.” The definition of the SOPA/PIPA-controlled Internet would be “No, don’t.” It’s a fine concept for a vending machine but a terrible one for a fundamental network that’s supposed to connect every human on the planet with every other human. And it’s galling that we can redefine the definition of complete and utter freedom just to offer a legislative boondoggle to a private industry that’s already quite profitable.

2) SOPA and PIPA won’t work.

It simply won’t. Copyright holders should be against these bills because they won’t curtail piracy.

Which isn’t to say that piracy isn’t a problem, or that the recording industry should have no means of redress. Nothing they’ve done in the past has worked and this scheme will fail like all of the rest.

I’ve been a good boy about avoiding analogies this far and now I feel entitled to indulge.

You press the button for the elevator and it lights up. But the elevator seems to be taking an awfully long time to arrive. So you press it again. And again.

Most people will do this and conclude that nope, pressing the button more frequently has no effect on the arrival of the elevator.

Others will conclude that the only reason why this didn’t work is because they haven’t been pressing the button fast enough. Still no elevator? OK, then they haven’t been pressing the button hard enough. WHAM-WHAM-WHAM they go, until the panel is destroyed and building security has arrived to drag them away.

“If it doesn’t budge, go get a bigger hammer” is a successful answer to very few situations outside of railroad construction. It’s certainly not the answer to piracy. The recording industry keeps trying to swing heavier hammers at the problem and they’re just creating more and more collateral damage. Now, they really want to break the back of the Internet.

A simple maxim of digital content has come into sharper and sharper focus with each passing year:

There are people who will never pay for a certain piece of digital content under any circumstances. The remainder of the pirates are merely a market that you don’t understand yet.

Good business is mostly about removing obstacles between yourself and your audience’s money. Any obstacles you erect to prevent piracy are also obstacles that the “willing to pay” and even the “eager to pay” people will need to deal with.

RIAA, MPAA need to live in this world

But, nope: the RIAA and MPAA refuses to learn. They keep trying for bigger hammers and tighter lockdowns on content, serene in the knowledge that everything will be fine once there’s only one studio-approved place to view the trailer for the upcoming big-budget “Knight Rider” movie, and that every iPhone transmits a streaming checksum of screen data to detect the viewing of pirated content and deliver GPS data to the local authorities.

I wish they could grasp the brilliance of a certain “Peanuts” Sunday strip. Charlie Brown is complaining to Lucy about not fitting in. She leads him to a hilltop. “Have you seen any other worlds?” she asks him. “There are no other worlds but this one to live in? I suppose so,” CB replies.

“Well, LIVE IN IT, then!!!” Lucy screams.

The commercial sponsors of SOPA and PIPA shouldn’t be lobbying Congress for a bigger hammer. They should stop, catch their breath, wipe the sweat from their foreheads, and ask themselves why these bigger hammers aren’t working.

Lucy has the answer. The world has changed. The way that people discover and purchase new content has changed. It’s a new world. They should try living in it -- and continuing to prosper in it -- instead of trying to shove it back the way it was when Groucho Marx still had a hit TV show.

Please write or phone your Congressperson and note your opposition to SOPA, and also contact your Senator with your concerns about PIPA. Letters and phone calls are stronger than emails and short, sensible statements are stronger than manifesto-type rants.

Contact information for your local legistators can be found via this site.



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