Will SOPA Pass Like a Fart in the Wind This Week?



Ye be rottin in Davey Jones locker for this upload!
  • Ye be rottin' in Davey Jones' locker for this upload!

For those of you who haven't been following the life cycle of the egregious Stop Online Piracy Act (or its Senate equivalent, the Protect IP Act), the debate over the future of the Internet has somewhat rightly been cast as a battle between the people who invented the Internet and the other four people who actually know how the Internet works, and a few members of Congress who are trying to untangle all of those web-tubes at the behest of their entertainment industry overlords.

The television, motion picture and music lobbies have thrown roughly $2 million at the 32 members of Congress who have signed onto SOPA, which those industries claim is sorely needed because their CEOs are losing money every time you watch adorable old people getting their swerve on. In all, SOPA's supporters have spent $90 million in lobbying efforts.

Supporters of the bill claim that to attack SOPA is to "defend piracy," and that any worry over its provisions is misplaced because the bill will only affect foreign "rogue websites" — so don't worry, the U.S. government would never pass a law against its own citizens. This, too, misses the larger point, and conveniently ignores that there's a law already in place to deal with issues of Internet copyright infringement — the Digital Millennium Copyright Act — that is currently being abused by Universal Music Group and other titans of entertainment who now clamor for more rights at the expense of users.

Further, supporters (like the U.S. Chamber of Commerce) argue that piracy is stealing, plain and simple, and must be stopped. But digital piracy isn't as simple as taking a few boxes off the back of a truck, when you're actually making copies of those boxes — and even grifters are entitled to a fair trial, unlike the provisions laid out in SOPA and Protect IP.

At its heart, the bills will essentially make it illegal for Internet Service Providers to allow U.S. Internet users to access websites that contain copyrighted material in the event that the copyright holder cries foul, potentially creating a giant database of blacklisted websites and eschewing due process for those accused of infringement. Even worse, it would put me under threat of legal action by linking to this. In the process, SOPA would fundamentally mutate the free flow of information on the web as we know it into something resembling China's Great Firewall.

Illustrating these and other concerns was a letter written by executives from over a dozen influential Internet companies — including the Googlebox and Twitter Machine — that was sent to Congress last month. In it, the tech companies argued that passage of SOPA/Protect IP would "require web services, like the ones we helped found, to monitor what users link to or upload," and "have a chilling effect on innovation."

Despite the fact that SOPA's ramifications are not entirely understood by the people who will be voting on it, the bill looks to be headed for a floor vote in the House sometime this week following another committee mark-up on Wednesday. Case in point: Last week's hotly contested House Judiciary Committee mark-up, which revealed that when it comes to the Internet, Congress doesn't know a DNS from a hole in the ground. True to form, Congress isn't required to know what they're voting on as long as they're getting paid to vote on it.

Tech-site ZDNet provides some perspective here:

[T]his weekend’s box office take for Alvin and the Chipmunks: Chipwrecked (you can’t make this stuff up) took in $23 million in just one weekend. So, for less than a tenth of the take from Alvin and the Chipmunks, our congress-critters have let themselves be influenced by a historically and unendingly regressive group of trade organizations.

By the way, if you calculate up the contributions the tech industry has made to these same 32 “lawmakers,” you’ll find the total to be $524,977 — one fourth the amount contributed by the entertainment industry.

Despite all the cries from tech experts throughout the United States, Congress is still doing its best to pass SOPA. Is there a correlation? Are our elected representatives paying four times more attention to the entertainment industry compared to us in technology? You be the judge.

Cynical though it may be, it is at least an explanation as to why the politicians who've sponsored it — including Tennessee's own Jim Cooper and Marsha Blackburn — are doing so, despite possessing little to no working knowledge of the mechanics of the web (as well as, perhaps, the First Amendment).

"Nashville is Music City," Cooper tells the Scene, "and we must stop the damage that online copyright piracy causes our performers and songwriters without undermining the spirit of the Internet and our freedom of speech.

Behind the scenes, however, consider the ever-present revolving door element that undermines Cooper's noble sentiment:

A pair of senior Hill aides at the center of a brewing battle between Hollywood and Silicon Valley are packing their bags for K Street, where they’ll work for two of the entertainment lobby shops trying to influence their former colleagues in Congress on the very same issue.

Allison Halataei, former deputy chief of staff and parliamentarian to House Judiciary Chairman Lamar Smith (R-Texas), and Lauren Pastarnack, a Republican who has served as a senior aide on the Senate Judiciary Committee, worked on online piracy bills that would push Internet companies like Google, Yahoo and Facebook to shut down websites that offer illegal copies of blockbuster films and chart-topping songs.

Halataei recently joined the National Music Publishers’ Association, and Pastarnack is jumping to the Motion Pictures Association of America, two lobbying groups pressing Congress to pass the proposals.

For his part, Memphis Rep. Steve Cohen, a member of the House Judiciary Committee responsible for the flavor of SOPA-sausage, had these words to say about fine-tuning the language of the bill in an effort to assuage free-speech concerns:
"My first thought is that it doesn't seem that there should be that much difference between what the Google folks and the techie folks are wanting and what the MPAA and RIAA and the other AAs want. Lemme ask maybe the gentleman from motion pictures — who's apparently got a Rick Perry problem with not being able to count to something — Mr. O'Leary [Michael O'Leary, Senior Executive Vice President, Global Policy and External Affairs, MPAA]. Have ya'll not gotten together and tried to work this out? Some way to fine-tune where there are people being penalized that are not guilty and sites being shut down where there's just a small infringement?"

Echoing Cohen's concerns, the Stanford Law Review goes many steps further, writing of SOPA/Protect IP:
The bills take aim not only at the Internet’s core technical infrastructure, but at its economic and commercial infrastructure as well. Credit card companies, banks, and other financial institutions could be ordered to “prevent, prohibit, or suspend” all dealings with the site associated with the domain name. Online advertisers could be ordered to cease providing advertising services to the site associated with the domain name. Search engine providers could be ordered to “remove or disable access to the Internet site associated with the domain name,” and to disable all hypertext links to the site.

These drastic consequences would be imposed against persons and organizations outside of the jurisdiction of the U.S. courts by virtue of the fiction that these prosecutorial actions are proceedings in rem, in which the “defendant” is not the operator of the site but the domain name itself. Both bills suggest that these remedies can be meted out by courts after nothing more than ex parte proceedings—proceedings at which only one side (the prosecutor or even a private plaintiff) need present evidence and the operator of the allegedly infringing site need not be present nor even made aware that the action was pending against his or her “property.”

This not only violates basic principles of due process by depriving persons of property without a fair hearing and a reasonable opportunity to be heard, it also constitutes an unconstitutional abridgement of the freedom of speech protected by the First Amendment.

We'll have an update on the outcome of Wednesday's mark-up if you're not too distracted (as I'm sure Congress hopes) by the impending tide of yuletide cheer. In the meantime, you might want to use the Internet while you still can, to contact your elected officials and let them know how great of job they're doing. Or just watch this video to dull the pain.

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