Wednesday, January 4, 2012


I'm not one to talk politics here, I generally try to stick to Science(!) as a topic, but SOPA has me bothered.  It has bi-partisan support and opposition, so I urge you to read this with an open mind, regardless of how wrongheaded you are ;-)

Most of the time, with issues this polarizing, it’s easy to figure out, after a fairly cursory look, which side is just out of their heads.  Then you can kind of find a middle ground, somewhere usually on, or at least towards the opposite side.  Here, it took a lot more work, but only because I remembered how awful the DMCA was for we hobbyist programmers who weren’t interested in pirating movies but, under the new regulations, would be facing a federal crime writing our own DVD playing program for our own personal use.  So, the last time politicians were trying to stop piracy, personal liberty and innovation took a hard blow, and the shrill arguments against this year’s incarnation of Governments Against Rampant Piracy rang truer than they often would.  Reading about the Stop Online Piracy Act wasn’t going to get me any closer to the answers, either.  So I choked down the full text of the SOPA, and I can tell you this: it is chock-a-block full of loopholes and vagaries, which are good for at least two types of people: lawyers and pirates.
On their face, the opposition of SOPA may as well be doomsday prophets, and while I doubt it will go that far personally, it actually could.  Not all the way to doomsday, obviously (Mayans have that covered), but their claims are far from as far-fetched as I'd like.
There are two problems here, and they are, I think, fundamental to understanding the problem SOPA tries to stop.  First, pirates are motivated, and not just by not spending money- many are ideologues who have embraced freedom of speech or something similar as their vanguard, armored in self-righteousness and fighting the good fight, thriving on the persecution layered upon them.  Some are just motivated by the challenge, others by the sheer thrill of breaking the law.  But they all have strong personal reasons (strong, not necessarily good or right) for doing what they do.  And, as mentioned above, they often thrive on their persecution, but more importantly, they survive it; they learn how to strike from the shadows.  They learn how not to get caught.
Legal vagueness (along with plenty of off-shore servers eagerly awaiting paltry sums of American dollars) only helps them evade capture- and while this bill does an admirable job of attempting to ensure quick action, they would be caught up in a legal quagmire as thousands of reports rolled in, many legitimate sites, all of which would have to be sorted through and individually shot down as being illegal.  Then those very sites, particularly the pirate sites, would spring up again, days or even hours later, under a new IP address, and they would have to be rooted out again.  Meanwhile, the legitimate sites would be frozen, and may or may not be agile (or too law-abiding) to simply switch to a new server.  Let’s not even look at the biggest points of concern- places like Youtube and Facebook- where even uploading a 30 second clip of a copyrighted song could get you shut down, because the good senator assures us that those sorts of sites have “have nothing to be concerned about.” If there’s anything we can trust, it’s the assurances of an American politician.  Just like the WMDs in Iraq or Gitmo being closed.
Besides legal vagueness, the biggest problem with SOPA is it violates the Presumption of Innocence (generally considered, if not explicitly stated, as a Constitutional right).  Good intentions are wonderful -there are plenty to see from the hand-basket, I hear- but they don’t substitute for the burden of proof resting with the accuser.  Under SOPA, I could claim your site was peddling illegally reproduced photography, dispatch a series of letters attesting to this “fact” and the ISPs would have to blacklist your site.  Then you would have to demonstrate you weren’t the purveyor of purloined pictures, and in the intervening timeframe, your site would remain blocked.  And by demonstrate, you would have to prove a series of credentials- including signing a letter under threat of perjury- that you were indeed not intentionally doing this activity.  Of course, if I’m wrong, it’s just my bad.  No penalties on my end.  But you, the defender, could inadvertently perjure yourself; you could end up with a heavy fine or even jail time.
On the other hand, common people don’t usually benefit from vagueness either; in my above example, mean-spirited or ideologically opposed individuals could silence entire companies because, well, maybe they didn’t say Christmas enough and they wanted to make baseless accusations of copyright infringement.  With proposed laws like SOPA, it’s not hard to exploit them for selfish reasons.
Another telling fact is that the support consists mostly of RIAA and movie companies, a few video game companies, along with a bunch of politicians (list of companies here).  Opposition consists of almost everyone else (Google, Facebook, Twitter, can't find an exhaustive listing, but here are 40+, and a startling number of musical artists [yes, it is with heavy heart I admit to being in the same camp as Justin Bieber on something]).
I’m not saying that we should give up trying to defeat piracy, but when hare-brained schemes like SOPA come along trying to do it, it seems a good enough option.
Of course, saying something is a bad idea is easy; coming up with options to fix the problem aren’t, and I don’t claim to have all the answers.  On piracy, I would say that games have managed to bounce back well from it- online services like Steam and other systems do very well at limiting a rampant phenomenon.  But they don’t do it by making it any more illegal- they do it by making it less interesting.  They’ve leveraged the social aspect of video games to make an environment where most people want to pay so they can play with their friends without limitation.  Exactly how movies and music could do that, I’m not sure, but unless the RIAA and the movie companies start trying something new instead of lobbying for more and more draconian legislation, nothing is going to change.

I am not a lawyer.  I read the text of the Stop Online Piracy Act here, and you can too.

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