December 10 is Human Rights Day, as designated by the U.N. General Assembly and observed all over the world. In honor of the occasion, I want to address the human rights implications associated with something central to all of us in the publishing industry: copyright policy.
For human rights, 2011 has been a tumultuous year. It is the year of the Arab Spring and the “Occupy” movements. It’s also been a year of atrocities
and shameful exercices of power, from Tahrir Square, Syria, and Libya to UC Davis, Berkeley, and the Brooklyn Bridge. It is also the year that saw the introduction of SOPA (the Stop Online Piracy Act), a bill recently introduced by representatives Lamar Smith (R-Tex.); John Conyers (D-Mich.); Bob Goodlatte (R-Va.); and Howard Berman (D-Calif.).
SOPA has the support of the American Association of Publishers, along with many of its member companies, including my own publishers. And despite an outpouring of public opposition, the bill is being fast-tracked to pass before Christmas. For a Congress that can’t seem to come together to pass anything, passage of SOPA seems entirely possible. The list of those invited to testify at the bill’s recent hearing comprised, almost entirely, supporters, mostly representatives from the so-called “creative industries,” like the Motion Picture Association of America.
SOPA’s opponents, however, call the bill “the worst Internet law in American legislative history,” and it has drawn condemnation from human rights organizations across the U.S. and around the world.
If the fights of 2011 have shown us anything, it’s that the Internet and the quest for human rights are inextricably linked. The Internet is where human rights fights are rescued from obscurity and brought to the world’s attention—whether Ustreams of Occupy protestors being forcibly evicted, Lt. John Pike’s pepper-spraying of students at UC Davis, or YouTube footage of Tahrir Square or the Syrian protests. Yet even as America’s leaders chastise their foreign counterparts for censoring the Internet, with SOPA they are laying the groundwork for an expansive, copyright-based regime of domestic censorship.
What’s wrong with SOPA? For starters, SOPA would create a new standard for “intermediary liability,” in other words, liability borne by companies and entities that are in the chain between someone accused of violating copyright and the audiences, such as Web hosts, payment processors, and operators of technical infrastructure, like the Domain Name System. Under SOPA, these intermediaries could be ordered to censor or block access to, and funding for, any site accused of copyright infringement, without due process, without a jury or the right to rebut accusations.
Such orders would emanate from the State Department, which would be vested with new power to demand Web sites be delisted from domain name servers, the millions of servers that translate human readable addresses (like www.thepiratebay.org) into machine-readable numerical ones like 18.104.22.168). It could also demand that payment processors cut off access to funds for these sites and demand that advertisers and ad brokers sever ties with the accused. And finally, these addresses would be added to a new national “firewall”—similar to the ones used in Saudi Arabia, Iran, and China—a filter that would censor the Internet and prevent American citizens from accessing files that no court has found to be unlawful.
But SOPA doesn’t just arrogate these unconstitutional powers for government—it hands them over to entertainment giants. Through a misleadingly named “market-based” system, SOPA would allow private entities to produce enemies lists of sites that offend them, and to give these lists to DNS providers, ISPs, payment processors, and ad brokers, who would then be required to remove the accused sites within five days. It also encourages payment processors to engage in self-censorship, by pre-emptively severing ties with firms they believe are likely to cause a complaint, before any such complaint is received.
As bad as this is, it gets worse: SOPA would also expand the definition of copyright infringement to include hosting a single link to a site that is alleged to contain infringing material. Thus, if an author’s blog, or a book discussion group, attracts a single post that contains a single link that goes to a site that someone accuses of copyright infringement, that site becomes one with the alleged infringer, and faces all the same sanctions—without any proof required, or due process.
The U.N. characterizes access to the Internet as a human right, and government research in the U.K. and in the U.S. shows the enormous humanitarian benefits of network access for poor and vulnerable families: better nutrition, education, and jobs; more social mobility and opportunity; and civic and political engagement. Yet the services that provide the bulk of these benefits—search engines, Web hosts, and online service providers like Blogger, Tumblr, Twitter, Wikipedia, and YouTube—could never satisfy the requirements set out in SOPA. The only way for these platforms to satisfy SOPA would be to all but shut off the public’s ability to contribute and to throttle free expression for all but those entities that can afford to pay a lawyer to certify that their uploaded material will not attract a copyright complaint.
Another group of important entities that could never satisfy SOPA are the civic-minded hackers and security researchers scrambling to improve the Internet’s Domain Name System (DNS). In 2011, the DNS was attacked several times, including a breach attributed to the Iranian secret police, which used forged certificates to allow them to impersonate governments, banks, and online e-mail providers like Gmail and Hotmail. If passed, SOPA would ban the production or dissemination of tools that could subvert its blocks, and that would include tools the world’s technologists are creating specifically to help defeat government censorship and surveillance. Many of these efforts and tools are actually funded by the U.S. government, and some, like the Onion Router (TOR), are used by U.S. armed forces intelligence services as well as struggling Arab Spring revolutionaries.
With SOPA, the entertainment industry has codified a doctrine that holds that the level of control given to copyright owners should grow in inverse proportion to the difficulty of copying in the digital age. But copyright policy is now Internet policy, because anything one does to limit copying is a shackle on the Internet and all of its uses, high and low. And because almost everything we do in the real world has an online component—a trend that will only continue until everything we do requires an online component—Internet policy will soon be, simply, policy. With this in mind, the creative industries’ advocacy for SOPA comes with a total disregard for humanitarian consequences, and it betrays a depraved indifference to everything except their fears.
Recently, Viacom sued Google’s YouTube service and asked the court to take away users’ ability to tag their videos as private. Why? Because a video that is only visible to friends or family is not visible to Viacom’s copyright enforcement tools. Many of us are agog that a large corporation would ask a court to rule that our right to communicate about our personal lives in private is subservient to its efforts to increase profitability. The chutzpah is astounding.
SOPA, however, makes Viacom look conscientious by comparison. SOPA would put the world’s ability to communicate freely about anything—movies, music, or books; or government corruption, police violence, employer malfeasance, and military atrocities—behind the entertainment industry’s desire to secure its business models, because, under SOPA, there would be no way to create an Internet platform for free public discourse that could satisfy the level of control demanded by these firms.
As the Internet grows, we can always discuss business models and ways to properly address digital piracy. But the literary world should never be on the side of censorship.
Visit www.americancensorship.org today to find out how you can fight SOPA.