The big SOPA story that you probably missed yesterday

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ICE seizure notice

What does this have to do with SOPA? Read the linked article!

You probably know about the big story yesterday, in which the House’s Stop Online Piracy Act (SOPA) and the Senate’s Protect IP Act (PIPA) led to a one-day blackout of many large sites on the Internet (most notably Wikipedia and Reddit) and more modest tributes from sites ranging from Google to craigslist to this very site you’re reading.

But you may have missed the bigger story: why?

Like most of us, you may have your own hypotheses, perhaps dealing with the motivations and/or character defects of supporters, opponents, or both.  It turns out that you can do better than that.  Someone actually wrote a comprehensive and easy-to-understand explanation of what the bills do — after doing their own research!  So if you want to understand what’s actually going on, this is the first link to click.

Here, maybe this will entice you.  (And because the material isn’t copyrighted, I don’t even have to limit myself to quoting only 3 paragraphs or so!)  I’m just concentrating on one of several sections, one introduced by a fan-made video tribute to an ABC television show that…

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…happens to be made up of hundreds of copyrighted clips I’m reasonably sure ABC Television never gave permission to use. But that’s OK, because I’m also reasonably sure the video is covered by Fair Use. But if I’m wrong about that, this is where DMCA’s “safe harbor” provisions come in.

Safe Harbor assumes I didn’t knowingly post anything which violates US copyright law.  So even if my ISP gets a take-down notice from ABC, Safe Harbor is supposed to protect me as long as I comply with the notice and remove the video.

Together, Fair Use and Safe Harbors allow for innovation because they create safe space for both free expression and honest mistakes. But content providers hate Fair Use and (more importantly) Safe Harbors because providers think these exceptions take the teeth out of enforcement, creating loopholes you could drive a truck through.

SOPA/PIPA gets rid of Safe Harbors. There is no safe space. A copyright holder can initiate a “private right of action”, convince a judge to issue an injunction (which we now know is way too easy to do) get your domain blocked, your advertising pulled and your finances frozen.

And thanks to SOPA/PIPA’s immunity provisions, a copyright holder wouldn’t even need a court order shut you down, just a letter to your service providers threatening to.

This section says that anyone who takes voluntary action “based on credible evidence” basically gets full immunity. Think about what that means in practice. If someone sends a service provider a notice claiming infringement on the site under this bill, the first thing every lawyer will tell them is “quick, take voluntary action to cut them off, so you get immunity.” Even worse, since this is just about immunity, there are no counter notice rules or anything requiring any process for those cut off to be able to have any redress whatsoever.

Between blanket immunity, the loss of safe harbor, and the lack of any redress for impacted site owners, SOPA/PIPA actually incentivizes wholesale abuse.

It’s already happening. Entire legal industries have been built around responding to DMCA takedown notices in bulk. Thin-skinned businesses routinely ignore Fair Use to issue DMCA takedown notices against sites which criticize them. Unscrupulous content providers alsosue legitimate online competitors for copyright infringement just to bankrupt them.

In 2007, Universal Music Group (UMG) brought a lawsuit against Veoh Networks (Veoh), a video hosting website, alleging that Veoh facilitated copyright infringement by providing a website that hosted videos containing music owned by UMG. On December 20, 2011, the Ninth Circuit Court of Appeals upheld a summary judgment in favor of Veoh and held that Veoh was protected by the Digital Millennium Copyright Act’s (DMCA) “safe harbor” provisions…. While Veoh’s website was found to be perfectly legal, its victory is bittersweet; the small startup company filed for bankruptcy early in 2010 from the high cost of defending its case.

At least under DMCA, Veoh could keep it’s business running while the case was litigated.

The SOPA/PIPA bills, however, would have immediately shut Veoh’s website down before it even had its day in court, thereby keeping Veoh from running its business which, in this case, was ultimately found to be perfectly legal. There is cause for concern when copyright holders abuse the law to stymie innovative new startups.

There are also some nasty implications for political campaigns. Implications that ought to give the bill’s Congressional supporters pause.

Imagine you are running for Congress in a competitive House district. You give a strong interview to a local morning news show and your campaign posts the clip on your website. When your opponent’s campaign sees the video, it decides to play hardball and sends a notice to your Internet service provider alerting them to what it deems “infringing content.” It doesn’t matter if the content is actually pirated. …. If you don’t take the video down, even if you believe that the content is protected under fair use, your website goes dark.

I’m sure nothing like that would ever happen, because, you know, it never has before.

During the waning days of the 2008 presidential race, there was an important but overlooked occurrence on the John McCain campaign. In mid-October, the McCain campaign awoke to find that its Web videos and online advertisements were disappearing from its YouTube page.

The culprit turned out to be a major television network claiming they owned portions of the videos and that posting the clips was a violation of copyright law. Even though the campaign, and many others in the online community, believed the content to be privileged under the “Fair Use Doctrine”, the videos were pulled down.

John McCain, by the way, is one of PIPA’s co-sponsors.

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Greg again:

Darrell Issa, aka DARRELL FREAKING ISSA!, is on the right side — the anti-SOPA side — of this issue.  In fact, Republicans have been abandoning SOPA faster than Democrats have, a fact that does not give me happy tummy.  (Yes, Democrats get a lot of money from Hollywood, but there are ways to combat copyright piracy without the many nasty side-effects listed in the linked article.)  So this isn’t partisan; it is between, as the author of the linked article says, “between those who understand how the internet works and those who don’t, those who see opportunities for growth and innovation and those who fear change and are holding on to old business models for dear life.”

Which are you?  Even though you’re a day late, read up on SOPA and make up your own mind.


About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)