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 184.108.40.206). 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.components/article_pagination.html not found (No such file or directory)