Pajiba's IP Lawyer Explains How Two Bills Running Through Congress Could Ruin the Internet and Put Us in Prison

By Seth Freilich | Think Pieces | January 17, 2012 | Comments ()


lost-jeremy-bentham.jpg

"Every law is an evil, for every law is an infraction of liberty."

That quote comes from Jeremy Bentham, who went on to note that, because of this fact, those who enact laws must be sure "[first], that in every case, the incidents which he tries to prevent are really evils; and [secondly], that if evils, they are greater than those which he employs to prevent them."

Tomorrow, Wikipedia, Reddit and some other websites (the Cheezburger sites and the Boing Boing network, just to name a few), are planning to go dark for the day to protest SOPA (and it's less publicized sister-in-crime PIPA). Dustin has previously written about the phenomenon many of us encounter because we frequent many movie and pop-culture websites, wherein we think the collective conscious knows and loves something only to find out that excitement really just lives in the sheltered sphere we're familiar with (it seems like we see at least one movie bomb a year despite the wild excitement in certain corners of the webdom). I've come to realize that, to some extent, the same is true with these two atrocious pieces of legislation. If you regular tech or nerd websites, you're probably familiar with SOPA and PIPA. But the majority of the public doesn't know much, if anything, about these things. Hell, before last week, even Jon Stewart, the liberal's bastion of attacking the truly bad and evil in the political machinery, (at least claims that he) didn't know about SOPA.

In the last week, there's finally been some press about these bills, particularly in light of the fact that SOPA has been temporarily tabled, and even the White House has come out against a part of SOPA. But all these discussions seem to be along the lines of changing SOPA, when what really needs to happen is that both SOPA and PIPA need to be put on stakes and burned like witches. So let's break this shit down and look at exactly why these bills are abominations.

SOPA. The Stop Online Piracy Act. PIPA. The Protect IP [Intellectual Property] Act. They're largely two sides of the same coin. SOPA is a bill that had been working its way through the House, while PIPA is a comparable bill working its way through the Senate. Both are fashioned as attempts to curtail Internet piracy, backed by Hollywood and other generators of content. To date, these industries have largely been behind the technology curve and have therefore seen a growing proliferation of online piracy. This is nothing new to any of us. Consumers, unable to easily access the content they want and uncaring about the right-or-wrong of it all, take to the torrents, Usenet and other channels of illicitness to quickly and freely obtain the movies, shows and music they want when they want it.

As some readers know, in my day job I'm an intellectual property lawyer. I've litigated from both sides of the intellectual property table, sometimes representing my client in prosecuting against another's infringing activities, sometimes defending my client against another's claim of infringement. For many companies, their IP has become their most valuable asset, and these companies seek to ring every last dime out of those intellectual property rights. And for the Hollywood machine, of course intellectual property is their very bread and butter. Intellectual property is important and while some of our IP laws are a bit busted (in particular the ever-expanding time of protection one gets for a copyright), intellectual property should be protected. Infringement should be attacked and curtailed -- a movie studio has legitimate rights that are infringed when their movies are readily downloadable with a click on a torrent link, and the mere fact that the studios are stuck living in an outdated distribution model doesn't make clicking on that torrent "right."

And there may be ways to attack piracy. But SOPA and PIPA aren't those ways. These bills go well beyond what one might consider a reasonable response to online piracy. The legal details are thick and I won't bore you with them all. But the main focus of these laws is that any site that contains a mere link to another site, itself responsible for some infringing activity, is in the legal cross-hairs. The site can essentially be shut down -- court orders can be obtained requiring the site's service provider to block U.S. citizens from accessing the site. The domain name can become blacklisted (although the site could still be traveled to through its numerical IP address). The site owners can be charged with felonies. That's federal pound-me-in-the-ass prison, folks.




The Guardian created a brief video last December explaining SOPA:

(Sure, Bieber going to jail is a good thing, but let's just have a Send Just Bieber to Prison bill, and scrap this garbage.)

The implications of these bills are many, despite the fact that their "intended targets" are foreign sites that infringe, because their reach is much closer to home. You know how much we love those "Community" animated gifs? Well a tumblr page hosting those gifs could get shut down. Worse yet, all sites linking to that page, also get shut down. Bye-bye Pajiba. We write a news article merely linking to some other site that has posted a leaked trailer, or post a trailer not realizing it was "leaked" and not "official?" Again, bye-bye Pajiba. When you type www.pajiba.com into your browser, you'll get a page telling you that Pajiba has violated SOPA and fuck off. And me and Dustin will be rotting in jail.

Worse yet, because we're responsible for all links and content on the site, this includes the things you heathens put in the comments. In response to a review, what if one of you lovely commentors throw a link to some torrent-hosting site making the movie or show being reviewed illegally available? Bye-bye Pajiba. Sure, it's a bit the-sky-is-falling, but fearing being shut down and prosecuted, these laws would require many of us to go to strict comment moderating to try to keep our sites up and infraction-free.

There are of course the broad censorship concerns, too. We post reviews that are not well received all the time. (Spoiler alert -- stay tuned for an article in the next few days telling you how and why Pajiba has been banned from Sundance). So do a lot of other sites. If a studio wanted, I'm sure it could dig through our site, or virtually any site on the net, and easily find some page which qualifies as an infraction under SOPA/PIPA. Bye-bye every movie review site that employs anyone other than Armond White. (Laurence Tribe, a big-shot Harvard law professor and big-time First Amendment proponent, says SOPA is unconstitutional exactly for this reason, because "an entire Web site containing tens of thousands of pages could be targeted if only a single page were accused of infringement.")

And on the smaller scale, what if I'm feeling particularly nefarious? Maybe I'll go on a campaign of terror some day and start commenting on all of Pajiba's competitors, loading up their comments with links that get them shut down. Bye-bye everybody else.

(... Actually, the idea of a Pajiba-only Internet isn't so bad.)

You Tube? See ya. Facebook? Later. Google? What the hell is a Google? These all violate the terms of SOPA and PIPA and could essentially be shut down. Proponents say these aren't the types of sites they're after, of course, but that's not the point. Path to hell, good intentions. (Not that I believe these bills are particularly good intentioned.) Today it's taking down that Chinese site, tomorrow it's stifling speech. As Google's Sergey Brin put it:

While I support their goal of reducing copyright infringement (which I don't believe these acts would accomplish), I am shocked that our lawmakers would contemplate such measures that would put us on a par with the most oppressive nations in the world.

There's a fantastic site called Get Your Censor On which humorously and illustratively goes through a lot of these implications, and I highly recommend you peruse it. They ask, for example, whether "you want the brilliant people who made ... quality films" like Gigli and Deuce Bigalow: European Gigolo "to decide what you can look at online?" The always fantastic David Carr also wrote a News Year's Day column about "the danger of an attack on piracy online," which is very much worth your reading time. Go ahead, I'll wait. (The gist is that SOPA likely won't fix shit, and "[g]iven both Congress's and the entertainment industry's historically wobbly grasp of technology ... they [shouldn't] be the ones re-engineering the Internet.")

The Hollywood argument, of course, is that piracy "took err jerbs" ... hmmm, excuse me for a moment:

Right. As I was saying. Hollywood's argument is that pirates take jobs and cost vast economic harm. Well, again, I'll have to send you elsewhere if you want to see a long takedown from the Cato Institute of how the numbers cited in support of the vast harms caused by Internet piracy are bogus, but the long and short of it is, the numbers don't add up. Which isn't to say nothing should be done -- again, as I said earlier, and as most opponents to these bills agree, there's nothing wrong with the goal of trying to stop Internet piracy. But as Bentham says, you don't wanna attack that evil with a greater evil. And SOPA and PIPA are fucking evil.

Are you still with me? Good on you. Now you may be wondering why, up until this week, many folks haven't heard much about these controversial bills. In large part, it's because TV network news has entirely ignored the issue. Media Matters, a media watchdog, found that from October 1 through January 4, most major news outlets, including MSNBC, Fox News and the three broadcast networks, "have ignored the bill during their evening broadcasts," with only CNN giving the legislation any discussion. Suspiciously, ABC and CBS are on the Congressional list of SOPA supporters, as are NBC and Fox's parent corporation. I'll let you make whatever assumptions about this and the lack of coverage you choose to make -- I'm sure you can guess what assumptions I've made.

Anyway, this finally started getting on folks' radar last month when Reddit got particularly worked up over the fact that GoDaddy was a supporter of SOPA. They organized a massive effort to have folks dump GoDaddy as their domain registrar, which became particularly effective when Wikipedia publicly said it would be moving on from GoDaddy. GoDaddy eventually found itself withdrawing its support of SOPA and then, when the attack on GoDaddy's bottom line didn't stop, actively saying it opposes the bill.

And over the last week, as the backlash largely led by Reddit has continued to mount, the tide has started to turn. Several Republican co-sponsors of PIPA have asked that the Senate not hold a vote on PIPA, writing that "we have increasingly heard from a large number of constituents and other stakeholders with vocal concerns about possible unintentional consequences of the proposed legislation, including breaches in cybersecurity, damaging the integrity of the Internet, costly and burdensome litigation, and dilution of First Amendment rights ... serious issues that must be considered in an informed, deliberative and responsible manner."

Just last weekend, the White House came out against SOPA, noting that it "will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet." The focus of the White House's attack on the legislation was on the DNS aspects, noting that the Domain Name System is "a foundation of Internet security" and that "[w]e must avoid legislation that drives users to dangerous, unreliable DNS servers and puts next-generation security policies ... at risk." And the day before, perhaps knowing this White House attack was coming, SOPA was temporarily tabled so that the DNS-blocking provisions could be removed (similar language has apparently also been removed from PIPA). The hearing for this Wednesday (which is why Reddit chose tomorrow as its blackout date) has been postponed pending some "retinkering."

But as the Electronic Frontier Foundation noted, this isn't enough. "These bills need to be killed altogether [because] ... they are not fixable." Tinkering, rejiggering, taking out one bit of offensive DNS business just doesn't cut it. This is a "victory for opponents," but it's not the victory. As a Fast Company editorial noted:

This is one of the most dangerous pieces of legislation ever introduced in Washington. It will not only strip us of many of the freedoms (and websites) that we currently hold dear, but will also set a precedent that the U.S. Government controls the Internet. We've seen what has happened in the Middle East and Asia when governments meddle with the Internet. It cannot happen here.

Cory Doctrow even more succinctly summed it up thusly: "The contempt for human rights on display with SOPA and PIPA is more than foolish. Foolishness can be excused. It's more than greed. Greed is only to be expected. It is evil, and it must be fought."

Is that extreme? No. Just look at this part of the MPAA's response to the White House's weekend attack:

While we agree with the White House that protection against online piracy is vital, that protection must be meaningful to protect the people who have been and will continue to be victimized if legislation is not enacted. Meaningful legislation must include measured and reasonable remedies that include ad brokers, payment processors and search engines. They must be part of a solution that stops theft and protects American consumers.

Talk about fucking arrogance. "Thanks, Obama, but fuck you. We want to be able to shut everybody down. To protect 'consumers.'"

(You know, what chaps my hide more than anything else is that after the music industry botched the transition to the digital age, the movie/TV industry had a chance to pull a Sam Beckett (the Quantum Leaper, not the playwright) and put right what the music industry had gotten so wrong. Instead, it feels like they're doing a modern interpretation of Waiting for Godot, just sitting around like a couple of idiots.)

One final note. As longtime readers of the site know, we were shut down by the Department of Homeland Security a little less than six years ago. We weren't their target -- best we could ever figure out is that one of the 200 sites that shared our hard drive was peddling kiddy porn. But when they went after that site and confiscated our ISP's hard drive, Pajiba and 200 other sites went kaput. Our lack of proper backing up at the time meant that we lost some content, and all comments. It was sad, and an easy example of how government enforcement can easily overstep its bounds -- we never got a straight answer, and six years later, despite formal requests, we never got a copy of our data, our intellectual property, that was stolen by the government. But the good thing that resulted from this little incident is that we moved to a new host, ServInt, which has been a blessing for many reasons. Plus, they get it:

[T]here was one thing we never got invited to do: speak at any of the CES sessions. That was a gig reserved for seriously important people only. And that's why ServInt's presence on the "Infringement, Rogue Websites, and Copyright Crackdowns: How to Catch Tuna Without Catching Dolphins" panel is such a big deal. Today, ServInt's leadership position in the efforts to stop SOPA, PIPA and other flawed anti-piracy legislation is being recognized by having our COO, Christian Dawson -- in his role as one of the leading voices of the Save Hosting Coalition -- represent the viewpoint of the Internet infrastructure industry. The battle against SOPA is hitting the mainstream, and ServInt is being recognized for all the hard work we're putting into it. That's great -- but we still need your help.

Good on ya, ServInt. And as they say, this fight's not over. If you want to stand up and do your part, make it clear that SOPA and PIPA don't simply need to be tweaked, but put in a fucking trash pile, you should:

If it's not obvious, Pajiba opposes SOPA and PIPA. As readers of Pajiba, you're largely smart, critical and rational free thinkers. You should also oppose SOPA and PIPA.



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