For the last decade, Hollywood and big music have spent time not innovating, but trying to get the US Congress to help them tame the internet. Over the years, they’ve floated a variety of legislative mechanisms to do that. The latest is a House bill called the Stop Online Piracy Act. SOPA, as it is known, has internet advocates boiling - and with good reason.
While the Motion Picture Association of America (MPAA) and its allies rolled out their attorney, First Amendment lawyer Floyd Abrams, to say that the bill would “protect creators of speech, as Congress has done since this nation was founded, by combating its theft,” many in the technology world roared disapproval. At Techdirt, Mike Masnick compared SOPA to the Internet restrictions used by repressive regimes; “Setting up such a system in the US would be an epic mistake,” he wrote.
GigaOm’s Mathew Ingram wrote that the bill gives the government and private companies “unprecedented powers to remove websites on the flimsiest of grounds.” The Electronic Frontier Foundation called the bill “a dangerous wish list.” The non-profit Centre for Democracy and Technology in Washington said SOPA would cause “broad collateral damage to freedom of expression and privacy.”
Leading Internet companies, including AOL, eBay, Facebook, Google, LinkedIn, Mozilla, Twitter, Yahoo and Zynga, teamed up in a Washington-speak letter drily objecting to the bill. Google’s Eric Schmidt was blunter. ”The solutions are draconian,” he said in an appearance at MIT. The bill “would require ISPs to remove URLs from the Web, which is also known as censorship last time I checked.”
When it comes to talking about SOPA, it is important to remember this: You can think that “intellectual property” infringement (not only of movies and music, but knockoff Nikes sold online) is bad for the American economy and still think the legislation is a disaster. Not only would the bill likely do little to address the problem of online content fraud and counterfeiting, but it takes aim at the core features of the internet that have contributed a great deal to the American economy.
Congress, the political press and lobbyists for the entertainment industries like to frame this fight as one between giants. In one corner, the MPAA the Recording Industry Association of America (RIAA) and others decrying the “lawlessness” of the internet and in the other, Google, Facebook and other big tech firms defending their business. But SOPA isn’t just about corporate battles.
For all the rhetoric, this isn’t even really about copyright. This is about the internet - and more to the point, the infrastructure and operations of the internet that make the internet what it is. SOPA targets search engines, internet service providers, ad networks and payment networks precisely because those components are so central to the functioning of the internet. Those are digital forces that should be messed with only with the greatest of care.
Here, in a nutshell, is what SOPA does. Under the bill, the US attorney general can, with court approval, require that search engines, ISPs, and advertising networks and payment companies stop dealing with foreign-based websites that are deeply engaged in copyright infringement, including blocking a website’s name from connecting back to the site’s IP address.
Google, for example, could be forced to block listings for targeted sites. Other sections of the bill puts copyright holders in a position to demand that ad and payment networks stop doing business with websites based in the United States and abroad when those sites are found to have engaged in prohibited behaviour when it comes to copyright.
Critics say that the bill is so broadly written that it incriminates sites that are designed in such a way that make policing copyright difficult, from Facebook to Dropbox to whatever new social network the kids in NYU’s Interactive Telecommunications Program are cooking up. That new vulnerability might scare off not only inventors, but investors.
And, as far as the domain name parts of the bill are concerned, the approach is largely pointless from a technical perspective. The bill targets file-sharing sites like the Pirate Bay that enable users to download movies without paying. Search engines would have to excise the name.
But hard-core pirates are simply going to traffic in IP addresses. For example, copy and paste “220.127.116.11″ in your browser. The Pirate Bay should still pop up, and there’s nothing Google can do about it. Still, the damage is done. What was once an international system for getting around the internet is fractured; SOPA opponents point out that it threatens to undo all the work done to harden the domain name system in federal and private cyber security efforts.
SOPA would overturn a long-standing presumption under US law that while internet players are certainly responsible for complying with the law, they’re not deputies in the copyright battles. During a hearing in the House this week on SOPA, Maria Pallante, the US register of copyrights, testified that SOPA rejects the idea that internet companies “don’t have an obligation to participate” in enforcing copyright.
They don’t - by design. Various US laws - Section 230 of the Communications Decency Act, the so-called safe harbour provisions of the Digital Millenium Copyright Act – grant internet companies the freedom to operate without being held responsible for knowing the legal pedigree of every piece of content on, or connected to, their sites. And for good reason.
Could Facebook have flourished with the expectation that Mark Zuckerburg and his Harvard dormmates were culpable for every link or video clip someone uploaded to their site? Not likely. So when Pallente testifies that “I believe that search engines should be fully within the reach of the attorney general,” we should hear the legislation for what it is: a revision of the notion that internet companies have a duty to comply with the law, but not to act as its enforcers.
Washington is sometimes rightfully criticised for harbouring some crazy ideas when it comes to the internet. But the federal government has gotten some basic things very right, from funding the internet in its early stages to having the wisdom to enshrine Section 230 and the safe harbours. It would be a shame to see Congress trash that legacy with a single bill.
Another concern is what SOPA would do for other countries that seek to shape the internet as they see fit, China, of course, limits online discussion of democracy, often target the tools, like its home grown version of Twitter, Sina Weibo, that foster those conversations.
With SOPA, the United States would stand on shaky moral ground when it starts ordering search engines and ISPs to block and black out sites. As Secretary of State Clinton goes around the world promoting her “Internet Freedom Agenda,” she’ll be put in the position of distinguishing between the blocking of bootlegged movies (an infraction that China has shown it doesn’t care much about) and limiting democratic speech online. That’s a distinction very likely to get lost in translation.
And because the US is doing it, there’s even more at stake. We might like to think of the Internet as an organic global medium, but someone has to make the trains run on time. That someone is ICANN, a California-based group that runs the internet’s naming and numbering systems under a contract with the US Department of Commerce.
Not everyone in the world is pleased with the central role of the United States in the Internet’s governance, with several nations and groups wanting ICANN to hand over its authority to the United Nations’ International Telecommunications Union. The U.S. government — and the countless computer scientists, engineers, and Internet policy advocates who live and work here — have been good stewards of the Internet so far. SOPA would throw that away with, potentially, little in return.
Opponents of SOPA are nervous that the bill and its counterparts in the Senate have bipartisan support; SOPA’s 24 co-sponsors in the House include 14 Republicans and 10 Democrats. But the sheer extremism of the measure has made for strange bedfellows.
In a tweet this week, House Democratic Leader Nancy Pelosi wrote: “Need to find a better solution than #SOPA #DontBreakTheInternet.” Her nemesis, Darrell Issa, Republican from California and chair of the House Oversight Committee, retweeted Pelosi’s note, appending commentary of his own: “If even we can agree … “
So why is Congress bothering? For one thing, Congress is eager to find real solutions for the struggling American economy. And for another, the music and movie industries have spent years and millions of dollars to sell the case that online copyright infringement is an albatross around the economy that the House and Senate can make go away. Right now. Study the test of SOPA for any length of time and with any real knowledge of how the internet works, and you’ll realise it’s not that simple.
Still, there’s a mini-industry in Washington that consists of selling the idea that it is. Using data from the Centre for Responsive Politics, Politico recently reported that the entertainment companies and other SOPA allies spent $280 million over 2010 and 2011 on lobbying. Google, eBay, Facebook and other big tech firms, by comparison, spent $30 million. We shouldn’t underestimate the degree to which SOPA is the natural product of a self-perpetuating system that demands some justification of why the MPAA et al are spending all those millions year after year.
Of course, at some point, even Washington has come to realise that there’s a lot more to the internet economy than that described by the movie and music industries. Google is no slouch, and no member of Congress wants to be seen as standing in the way of the next Facebook.
Andrew McDiarmid, an analyst for the Centre for Democracy and Technology, which opposes the bill, said: “We were kind of encouraged by the hearing this week.” There were not public advocacy groups or internet engineers testifying, and Google represented the sole opposition to the bill. “It was stacked,” he said.
“But at least five members of Congress raised concerns, and they asked more questions than I think we expected,” he said. ” There’s a fair bit of momentum on the bill, but people are really starting to take notice.”
*Nancy Scola is a New York City-based political writer whose work has appeared in the American Prospect, the Atlantic, Columbia Journalism Review, New York Magazine and Salon. On Twitter, she's @nancyscola.