When Even Google’s Lawyers Are Worried, Your Legislation Probably Sucks

I was reading Dean Wesley Smith’s blog post about Kris Rusch’s discussion of how legacy publishers are (mostly) going to survive the digital revolution. Someone in the comments section brought up the Stop Online Piracy Act, which is basically the House of Representatives’ version of a Senate bill call the Protect IP Act, which is a rewrite of COICA. COICA was a nasty piece of work that Senator Ron Wyden (D-OR) killed by placing a hold on the bill, so Senator Patrick Leahy (D-VT), whom I like to refer to as the less-competent Senator from Vermont, simply re-wrote his old bill and re-submitted it.

I was going to write this comment in a comment on the post in response to the flyby comment by K.W. Jeter about how everyone opposing SOPA is paranoid but it’s too long, so I’ll just put it here.

@ K. W. Jeter: It’s more than a little naive to assume that proponents of a bill are going to explain the legalese in a way that highlights the various legal maneuvers available for exploitation by government entities. When a publisher presents a contract with a non-compete clause in it, you question its inclusion, and they reply that the phrase is not meant to be read like that and why, they would never dream of killing your career in that way, is it wise to “trust them?”

The bottom line is that SOPA eliminates the Safe Harbor provisions currently in the Digital Millenium Copyright Act.

This is not about the intent of the legislators, although I or anyone else could present several recent instances when it would be reasonable to question whether our representatives and other around the world were really acting in good faith as opposed to bowing to corporations when they promoted such gems as COICA, the Orphan Works Bill, ACTA, the Patriot Act, CAPPS II, the Digital Economy Act, the HADOPI Law, etc. ad nauseam. This is about the actual legal limits that the government *could* exercise at the behest of industry groups or because of an administration’s ideological agenda.

Congresspeople are notorious for supporting bills encouraged by lobbyists for the industries that bankroll them. I prefer to review analysis from outside group with reliable track records like the ones EFF and EPIC have, or at least to consider news coverage from longstanding media outlets who, while often guilty of sensationalism, do have eyes for detail and attempt to follow a journalistic code of ethics.

The fact is that congressional memos can contain as many lies and dissembling as the people writing them want them to have.

Apparently, many journalists and bloggers have the same concerns as Lyn above (although the comment seems a bit of the drive-by sort), as well as a few semi-competent business like, oh, Google, which is considering ditching its membership in the Chamber of Commerce, it feels so strongly about this, Yahoo, which has already ditched its CoC membership over PROTECT IP, Facebook, AOL, Twitter, the Electronic Information Privacy Center…

The fact that Facebook and Google are agreeing about anything is news enough and indicative of  how seriously they take PROTECT IP and SOPA as serious threats to their livelihoods. Isn’t it funny how the Chamber of Commerce is only on one’s side when one is the Luddite or the arch-conservative?

Here’s a relevant quote from EFF:

Of course the word “blacklist” does not appear in the bill’s text—the folks who wrote it know Americans don’t approve of blatant censorship. The early versions of PROTECT-IP, the Senate’s counterpart to SOPA, did include an explicit Blacklist Provision, but this transparent attempt at extrajudicial censorship was so offensive that the Senate had to re-write that part of the bill. However, provisions that encourage unofficial blacklisting remained, and they are still alive and well in SOPA.

http://www.eff.org/deeplinks/2011/11/stop-online-piracy-act-blacklist-any-other-name-still-blacklist

Ars Technica is spot on and debunks the so-called “myth-debunking fact sheet” that the bill’s supporters have released:

http://arstechnica.com/tech-policy/news/2011/11/the-stop-online-piracy-act-big-contents-full-on-assault-against-the-safe-harbor.ars

In conclusion, don’t let overly broad language even have the potential to be harmful if it should someday go into effect. Kill it at the roots, and kill it dead! Or something like that.

Creative Property, Idiocy, Infringement, Politicians Behaving Badly , , , , , , , , , , , ,

2 responses to When Even Google’s Lawyers Are Worried, Your Legislation Probably Sucks


  1. I am hopelessly confused over this. I loathe pirates, of course, but I’m terrified by the thought of corporate control of the internet.

    • svrowle

      I think the main problems are

      1. legislators don’t truly understand the nature of the sites they are discussing, so they rely on industry lobbyists to tell them a lopsided version of the truth, and
      2. most laws are not tailored for the nature of internet, and the nature of the internet is to beg forgiveness rather than ask permission. Computer systems are not currently equipped to figure out the difference between a mashup of music videos as political commentary and some guy who just posts copies of music videos on YouTube.

      Therefore, as imperfect as YouTube is at pulling infringing videos, it still has an appeals process and involves the accused and the copyright holders. Plus, the filtering program doesn’t always work properly. Infringing stuff goes up all of the time, and fair use videos are pulled or screened out every day. It’s up to the rights holders to complain.

      What the MPAA and RIAA want is to have all sites, from Google down to your blog, screen the all content uploaded, even links, aggregators, and search engine results that are in no way connected to the original site the way YouTube screens its uploads. Normally, if someone posted an infringing comment on your blog (eg. a copy-paste of a news article from the AP), the AP might send you a DMCA request, and once you read your email, you would delete the comment and not be liable. Under SOPA and PIPA, you would be liable even if you had no clue that commented existed.

      The lobbyists also consider Google, as an aggregator of search results — which is basically what most torrent sites like The Pirate Bay are, since they don’t host the actual content — to be complicit in piracy and counterfeiting. It’s like suing public transport because a robber took the bus to the bank.

      I, for one, download public domain movies, music, and audiobooks released under creative commons licenses using torrents, because it’s the fastest and cheapest way to access the files. Inevitably, with social media, any tool meant to send information can and will be misused.

      The laws are supposed to catch criminals, not punish technology because criminals are smart. Conflating counterfeiting and piracy also muddles the issue.