If you critique SOPA, read the text. If you read the text, read it right.

Earlier this week Eriq Gardner speculated in a tweet that less than one tenth of one percent of folks have actually read the SOPA legislation. I bet he’s right. It’s good to read the statute. But what might be worse than not reading it is reading it wrongly and thereafter propagating misunderstanding.

One of the motifs that has permeated the SOPA discussion is this idea that evil (usually corporate) interests could shut down entire, innocent sites based on one piece of user generated content on that site that is, or links to, infringing material.

Some commentators, such as the usually astute Khan Academy in the video embedded below, have gone so far as to say that one little transgression by one user could bring down all of Facebook, YouTube, or Vimeo. (That discussion begins at about the 5:00 mark where the narrator purports to parse the language of Section 103 of SOPA.)

We are fortunate to have the means and motivation to rally around an issue like SOPA and make it a topic of worldwide discussion. But it turns unfortunate when some of the loudest criticism is based on misinformation. That’s happening now.

It is silly to think that one person could bring down Facebook and leave its almost a billion users in the dark. It is silly to think that Congress would enact legislation making that possible. Those thoughts are silly because they are not based on reality. One user could not cause Facebook to be shut down, and SOPA does provide content owners with a way to accomplish that.

If you take a close look at SOPA, (and of course you should) you see that this “one person taking down Facebook” conclusion is not supported by the language of the statute.

If a federal judge is convinced that a site is “dedicated to the theft of U.S. property,” then he or she can enter an injunction (according to the Federal Rules of Civil Procedure and all the case law attendant thereto) shutting down that site’s domain name.

The present misunderstanding comes from a reading of SOPA’s definition in Section 103 of what it means for a site to be “dedicated to the theft of U.S. property.” That definition is much narrower than what other commentators would have you believe. Among other things, the site has to be:

  • primarily designed or operated for the purpose of offering goods or services in a manner that engages in, enables, or facilitates infringement, circumvention or counterfeiting,
  • have only limited purpose or use other than offering goods or services in a manner that engages in, enables, or facilitates infringement, circumvention or counterfeiting, or
  • be marketed by its operator or another acting in concert with that operator for use in offering goods or services in a manner that engages in, enables, or facilitates infringement, circumvention or counterfeiting.

A less-than-careful reading leads one to think that the definition brings in any site that enables or facilitates infringement, circumvention or counterfeiting. Read the definition again. Is Facebook primarily designed to rip off US property? Is it used for only a little more (i.e., does it have a limited purpose) other than to enable or promote piracy? Does Mark Zuckerberg say that is what it is for? Because the answers to these questions are no, no and no, a federal judge would not conclude that Facebook is a site dedicated to the theft of U.S. property.

If that federal judge were to so conclude, then he would likely be smoking dope. And if that is the state of affairs, then our problem is not SOPA, but federal judges smoking dope.

The fervent opposition to SOPA leads one to be reminded, like David Newhoff was in this piece, of the “death panel” hyperbole that surrounded the healthcare debate. It might be the same part of the brain at work that caused all the irrationality in Vancouver after the Stanley Cup. I’m just sayin’.

Principled and reasonable debate is awesome. Misguided arguments waste everyone’s time.

34 thoughts on “If you critique SOPA, read the text. If you read the text, read it right.

  1. Eric Goldman

    I agree that any discussions about the bills should be based on the text, but that goes both ways. Some of the statements from the bills’ proponents have been jaw-droppingly wrong and completely atextual. I personally blame the fact that the bills are too wordy and complicated for most people–especially members of Congress-to fully understand. Bad legislative drafting encourages statutory misreadings.

    You’re right that Facebook, as it exists today, isn’t going down due to a single user. However, I disagree that you’ve identified the only threat to Facebook circa 2005 or any new innovative startup. In my opinion, the real risk is that the deputized intermediaries–the payment service providers or ad networks or search engines–will receive a cutoff notice from rightsowners and drop the targeted site out of the unresolved liability fears, even if the targeted site had a successful defense under the statute if the issue ever got before a judge. True, this is a discretionary call by the service providers and not required by the statute, but it seems like the logical in-the-field consequence, especially based on our experiences with 17 USC 512 and the incentives provided by the safe harbor (“If in doubt, take it down”).

    So do you think I’m misreading the statute? Or do you disagree with what would happen in the field? Or are we talking past each other about different parts of the statute?

    Eric.

  2. Steve

    @Eric: Exactly! Just look at the wording of the DMCA, and the result in the field. There are a ton of laws that are so vague that they end up being misused, and abused.

    What happened with Fair Use after the DMCA? Most companies simply ignored flagrant abuse where, in my opinion, they should have lost their own copyright as a result.

    The movie and music industries are single minded and utterly unable to follow the times, trying to get laws in place that in actuality is there to try to stem the tide of change.

    With Congress spending a huge percentage of their time raising funds, and the simple fact that they almost never get to read what they propose, bah. The system has grown completely out of sync, where most should be fired for not doing their job, and bad laws gets written.

    Their job is to defend the constitution but very few have even READ it. Bah, I’d probably rather have random people in place than this sad lot.

    1. Grant

      “Their job is to defend the constitution but very few have even READ it.”

      Since you have read it, you are no doubt aware that the importance of establishing and maintaining copyright protections is specifically enumerated in the US Constitution.

  3. Maggie

    Eric, the Manager’s Amendment, which was the version before the House Judiciary Committee in December, requires a court order be delivered to intermediaries. The notice provisions were removed. You should be reading that version, not the one you cite. http://judiciary.house.gov/hearings/pdf/HR%203261%20Managers%20Amendment.pdf
    And Steve, while you may think that the content industries are “utterly unable to follow the times” please explain to me how the movie industry, which does distribute online, can make up the costs of production of a motion picture when it is competing with free? I hear a lot of commentary that the movie industry has an antiquated business model. Please tell me how to recover the production costs of a $100 million movie (not including prints and ads) by distribution on the internet. You can say cut costs but audiences expect a certain level of production now so to keep with customer demand producers cannot really cut much. I am still waiting to see the fabulous new business model for the movie industry from the innovative people of Silicon Valley.
    Disclaimer: I work for a major motion picture studio. These are my views and not necessarily those of my employer.

  4. Alex R

    You have misread Section 103 of SOPA. Section 103 does not involve the order of a federal judge at all; it merely requires that the rightsholder give notification to a payment processor or advertising agency, much like under the DMCA, and gives immunity to the processors and advertising agencies for the actions they take under the Act. Payment processors and advertising agencies are required to act within five days. Hence they have no incentive to verify that the website in question is truly dedicated to the theft of US intellectual property.

    Only if the payment processor or ad agency fails to comply, or if the site owner makes a counter-notification, will the case enter court.

    This means that for a small website which can’t afford to file suit against a large media conglomerate, a single accusation (even if false) can kill the site.

  5. Evan Brown (@internetcases) Post author

    Alex R – Are we talking about apples and oranges here or otherwise missing the point? Section 103 certainly does (eventually) involve a federal judge, if actions through the advertising service or payment network provider are unsuccessful (from the content owner’s standpoint). I don’t see how one of these providers doing what’s called of them in 103(b)(2)(A)-(C) would take the site offline. Sure, it might make things difficult with funds cut off, but that’s different than obliterating it. And if the site is indeed kosher, then how hard would it be to send a counternotification, even for the smallest of sites? See, we’ve gone down a rabbit hole here, talking about small sites, when my point was that SOPA does not allow single instances of bad user conduct to take down big players like Facebook, YouTube, etc. Am I missing something?

  6. Steve

    Has anyone redlined the amendments into the bill? I’d be happy to do so over the weekend, but I tend to agree that the fruit basket is getting hard to compare when people are talking past each other.

  7. Jim W.

    Evan,

    Each time the content industry has proposed these ever increasing intrusions on fair use and free speech, they have it worded in such a way that it can be interpreted whichever way they want. If you think that this type of thing (bad interpretation of terms like “reasonable” or “dedicated to piracy”) doesn’t happen, just look at the East Texas courts which we are all familiar with and their creative interpretations of patent law and purview.

    Any law that allows an individual or corporation to shut down payment services for a business or individual (and if you shut down income for a business, you *are* shutting down the business just like taking the air out of the room kills people)or hosting services or dns services with a simple accusation and no proof, and with no reasonable penalties for false claims to discourage them, you can guarantee the law will be abused by the deep pockets of the content industry or big business against the little guy who cannot afford the teams of attorneys required to take them on.

    And before you claim this law wouldn’t be abused or misinterpreted this way, or that there are checks and balances in the law, take a good look at the history of the DMCA. Even though the DMCA in theory has punishment for false claims, in reality it rarely if not never happens, and DMCA continues to be abused as a method to censor sites or cripple fair use or legal competition. Please show us one case where there were major consequences for big business making false DMCA takedowns. If there were penalties for mistakes, I can guarantee you there would be no “automated” takedown notices – they would have to make sure they got it right before they made accusations which were proven false.

    The history of abuse of the DMCA by big business and the 1% should be sufficient evidence to predict how legislation such as this will continue to be abused by the haves against the have nots. Content creators have already used their wealth and power to get ICE to take down sites without due process.

    The DMCA is being used and abused very effectively by these same content creators to stifle competition, free speech and fair use. SOPA, PIPA, and whatever future draconian versions the MAFIAA comes up with, are unnecessary – we already have too many bad laws and bad government practices yielded against the little guy at the behest of these abusers. They already have too many conventional warheads to attack us with, the last thing we need is to give them the “nuclear option” with more laws like SOPA/PIPA.

    So long as corporations are treated as persons (I forget who said “I’ll believe corporations are people when I see one given the death penalty”) and so long as there are no controls on lobbying and political contributions we will have a corrupt government with corrupt politicians making sure the US has “the best government money can buy – and it isn’t cheap.” We are quickly moving away from “the land of the free” towards “the land of the free rich where everyone else is subject to the whims of the rich and are without reasonably available remedy from abuse by the rich.”

    Did you notice how the content industry is pissed off at the President because they donated tons of money to him and he had the nerve to actually speak out about the problems with these bills? It sounds like they might be mad for thinking they had bought unconditional support but didn’t later receive it.

    You have a great blog and I enjoy reading it. I would like to encourage you to take your skills and knowledge and help fight the good fight against these abuses, and consider doing some pro bono work to help some of those who can’t afford to defend themselves against the MAFIAA. (If you are already doing this, then kudos to you!) We also need skilled attorneys to take on ICE for their domain seizures without due process and fight it all the way to the SCOTUS if necessary.

    1. James

      Jim W, I disagree strongly with pretty much everything you’ve said there, but I only have time to make this one point: creators are the victims of the DMCA, not the abusers. Musicians, writers, moviemakers etc have to send sometimes hundreds of DMCA notices a week to search engines like Google and rogue sites like Grooveshark to get illegal copies of their works removed. Even when those links are finally removed, those illegal copies simply reappear under a slightly different URL, and the process begins all over again. Independent artists simply do not have the time or resources to do this, and they shouldn’t have to. It would be simple for a site like Grooveshark to filter out *all* content by a certain artist once notified, but they refuse to do so, instead hiding behind the DMCA safe harbor provision and all the while profiting from the advertising. It’s a disgrace. The DMCA is terribly ineffectual for creators; whereas it is perfectly acceptable for a small site owner or blogger to claim safe harbor after making the odd copyright mistake, it is morally indefensible that large companies should be able to create a whole business model in this fashion and make millions off other people’s work without their consent. Please bear this in mind next time you talk of DMCA abuse. The ‘content industry’, as you call it, is incredibly diverse, and your blunt caricature of creators with their ‘wealth and power’ will not resonate with the vast majority.

      1. Sujal

        While your point about the labor required is interesting, it still assumes that these artists should be worried about sending so many DMCA notices. It’s really a tossup that they’re suffering any real damage from people that would’ve bought their work if it weren’t free.

        With so many digital distribution platforms available that leave the artist in control (both for video and audio), I think their time would be better spent marketing their work and focusing DMCA efforts on the one or two big sites that matter (YouTube, which has a good process in place, specifically).

        But, that’s just my gut feeling after working in the media industry. You have your gut feeling. What we need is impartial data, which has been hard to find.

        Sujal

    2. Grant

      I can agree with only one thing you said:
      “if you shut down income for a business, you *are* shutting down the business just like taking the air out of the room kills people”

      Can you not see that by stealing content that may have cost hundreds of millions of dollars and publishing it to the world for free that these parasitic rogue sites are shutting down the content creator’s income.

      The difference is, kill the parasite, the host can live. Kill the host and neither lives.

  8. Anonymous

    The three requirements are disjunctive, not additive. The last is the most troublesome; the sentence is parsed thus:

    “be marketed by its operator . . . for use in offering goods or services in a manner . . . that facilitates infringement . . . .”

    I am a blogger who has enabled unmoderated comments. I don’t think it’s any stretch to say that I have “marketed” my web site – “marketed” is a very ambiguous word that could mean simply making it public versus private. I “offer services” on my site, i.e., my opinion on things. My site “facilitates infringement” because it permits the posting of links, which could be to infringing content, without any intervention. You might hope that this section would not be interpreted so broadly, but a plaintiff’s lawyer will go there in a heartbeat.

      1. Bernd Jendrissek

        But Anonymous presumably can’t even afford to let it go to trial. Instead they have little choice but to enter a settlement by paying what are, effectively, their blackmailers.

        Imagine the chilling effects of bloggers disabling comments just because people *might* post infringing content on the former’s blogs, and that this *might* lead to financially wounding legal action by rightsholders. Imagine that as you phrase-search the Internet for the first few words of this comment.

  9. Pete Hanson

    Of course its just ONE person. The one person at a huge rich company who decides a site has to go – anyone else in the chain will just sign of on it. After all, why would anyone make up such a complaint if it wasn’t true!

  10. Alex R

    Evan — You’re right; large websites probably won’t be significantly harmed. They can afford to send a counternotification and possibly be sent to court. I’m much more worried about small websites. Certainly they can send a counternotification — assuming someone can reply before the deadline — but should the content provider choose to bring it to court, very few will have the funds to defend themselves.

    For quite a few small online businesses, having a payment processor cut off their funds does mean obliteration, even if relief could be obtained after several months in court.

  11. Mike Godwin

    In a nutshell, this legislation is about externalizing the costs of copyright enforcement on intermediaries. In short, it is a massive enforcement subsidy to the content industries. Not even the most meticulous reading of any version of these statutes escapes this fact. Huge externalized legal costs mean the end of the Web as we know it. not to mention the end of the balances built into the DMCA.

  12. byron lagrone

    That’s not what we in the tech industry are concerned with at all.

    Even using the provisions you list properly, against a site that is certainly infringing copyright, is bad simply because of the methodology as regards how the site is blocked. The lack of understanding of DNS and the TCP/IP stack by the bill’s proponents are at issue here.

    The issue my colleagues in the industry and I have had with this legislation since it was proposed have nothing to do with copyright, worrying that it might ‘break Facebook,’ or anything else so decidedly inane.

    The Domain Name System is a non-secure system with many exploitable flaws, but adding to that the idea of DNS poisoning to block access to a site adds more problems than it solves.

    I am sure we’ll hear about it once this passes and some Congressmen and women gets their bankroll taken by an enterprising fellowship with an over the counter PC, some network cabling and a reasonable facsimile of a banking website.

  13. Kai

    “… not based on reality.”

    Under current laws the abuses have already occurred, laws such as SOPA would simply extend the likelihood and expand the means of abuse.

    As one (of many) examples: The site, Dajaz1.com, a popular, legitimate site which was provided releases by publishers for promotional purposes, was taken offline for a year. A complaint was made, no communication with the site owners, no reasonable check as to whether the complaint was valid. No due process (with the help of a judge to keep things silent and secretive), no allowance to regain the site (even though they were large enough to afford a lawyer), no repercussions against those who took down the site.

    After a year, still without ever having been allowed to even be heard, they simply released the site back to the owners, no explanation, no apology, nothing.

    There is nothing in SOPA, or PIPA, to prevent such abuse. No consequence for abuse. No decent standard of evaluation or evidentiary requirement before action is taken.

    I have to wonder if you are simply, naive.

    1. Evan Brown

      Kai – I’m not sure, maybe I am naive. What I do know for sure is that your comment has essentially nothing to do with the point I was raising in the post. But thanks for playing!

  14. Kai

    … I see. I’m sorry, I assumed you’d be able to make the connections. I’ll break it down for you, so that it’s easier to grasp.

    “One of the motifs that has permeated the SOPA discussion is this idea that evil (usually corporate) interests could shut down entire, innocent sites based on one piece of user generated content on that site that is, or links to, infringing material.”

    This is the theme of your post, the remainder of your post is an expansion of this idea and an attempted rebuttal of that concept.

    In my post, I referred to how, even now, entire innocent sites have been shut down. The example given showed how a site, where content was not user generated (hence, more controlled) where copyrighted material was presented with only an embedded link (with full permission) was shutdown. In other words, in case it’s still unclear, innocent sites have been shutdown where conditions far exceeded (conditions were better) than the motif described.

    This means, that using a reality based example, the motif can be considered logically valid. This is because the example exceeds (has more stringent variables) the conditions in the motif’s concepts. Both in the case of how content sharing occurred and that an expansion of powers (which is what SOPA provides) was not in place.

    “It is silly to think that one person could bring down Facebook and leave its almost a billion users in the dark. It is silly to think that Congress would enact legislation making that possible. Those thoughts are silly because they are not based on reality. One user could not cause Facebook to be shut down, and SOPA does [not] provide content owners with a way to accomplish that.”

    Your first sentence is a straw man (perhaps unintentional). Instead of taking the referral to Facebook, etc, as well known examples to demonstrate a type of site (i.e. social or where the content is user generated), which is how the Khan video uses it, you use it as a definitive example. It is indeed unlikely that such large sites could be shutdown, but this is a distortion of the argument and a refutation of it does not address the actual principle of the argument presented. (Which is that sites become responsible for user content, which they obviously cannot completely monitor, as the Khan video discusses.)

    Again, the example provided, shows that even current legislation does make it possible to leave hundreds of thousands of users in the dark. It is still, a reality based example. In the example provided, a single (seemingly uninformed) RIAA representative (content owner) was provided a way to accomplish the shut down.

    “A less-than-careful reading leads one to think that the definition brings in any site that enables or facilitates infringement, circumvention or counterfeiting. Read the definition again. Is Facebook primarily designed to rip off US property? Is it used for only a little more (i.e., does it have a limited purpose) other than to enable or promote piracy? Does Mark Zuckerberg say that is what it is for? Because the answers to these questions are no, no and no, a federal judge would not conclude that Facebook is a site dedicated to the theft of U.S. property.”

    Previous legislation has similar definitions, and it is still under these definitions that the example occurred. An assumption that the same definitions would not be applied in similar ways, would require one to ignore reality based events. The example provided would also be able to answer no to all your suggested questions. But, a judge still provided multiple deferrals to even allowing the site owners to address the allegations, or see evidence, etc, etc.

    In my post:
    “There is nothing in SOPA, or PIPA, to prevent such abuse. No consequence for abuse. No decent standard of evaluation or evidentiary requirement before action is taken.”

    The previous, is why I mentioned this in my post. There is no substantive protective mechanism, or recourse, or evidentiary standard in SOPA or PIPA to prevent or resolve events such as in the example provided. And it is logical to believe that if abuse can occur under less expansive laws, under more stringent conditions, that the passing of SOPA/PIPA would increase the number of abuses/mistakes. Meaning, this is a concern based on real events.

    I hope that simplifies and expands it enough for you to understand. I’ll leave it at that though. This has used enough of my time.

  15. Jim

    You can’t help but be amazed at the total cluelessness of the MPAA RIAA MAFIAA. From Techdirt: “MPAA Directly & Publicly Threatens Politicians Who Aren’t Corrupt Enough To Stay Bought” http://goo.gl/0Cgfk

    “from the sickening dept

    Reinforcing the fact that Chris Dodd really does not get what’s happening, and showing just how disgustingly corrupt the MPAA relationship is with politicians, Chris Dodd went on Fox News to explicitly threaten politicians who accept MPAA campaign donations that they’d better pass Hollywood’s favorite legislation… or else:

    “Those who count on quote ‘Hollywood’ for support need to understand that this industry is watching very carefully who’s going to stand up for them when their job is at stake. Don’t ask me to write a check for you when you think your job is at risk and then don’t pay any attention to me when my job is at stake,”

    This certainly follows what many people assumed was happening, and fits with the anonymous comments from studio execs that they will stop contributing to Obama, but to be so blatant about this kind of corruption and money-for-laws politics in the face of an extremely angry public is a really, really, really tone deaf response from Dodd. “

  16. M. Slonecker

    Mr. Goldman,

    Yes, in my opinion you are misreading the proposed language relating to Section 103. A “qualifying plaintiff” is limited as to whom it can intiatie an action, in rem in one circumstance, and in personam in another. When this is considered in conjunction with the other definitions recited in Section 103, it is clear to me that the “action” is quite constrained, at that the most that can result from any such action is a court’s issuance of an order under its equitable powers, under which order the problematic site or portion thereof is identified with specifity sufficient for one served with the order to be able to comply, and even then compliance is limited to that which is specifically covered by the order.

    Having read several of your comments to various anti-SOPA blog, I was quite troubled that you proffered on such blogs no such analysis, opting instead to encourage anti-SOPA sentiment with what was essentially a “right on, dude”.

    Perhaps I am mistaken in some aspect of my interpretation, but a thoughtful and proper response would be to engage and explain why this is so. Regretably, this never happened, as a result of which FUD continued to flow over the blog-o-sphere. I have never professed to being spot on in my interpretation of the bill, but it is impossible to engage in a conversation with an opponent who chooses to never engage and continue merrily along their way dispensing conclusions upon an unsuspecting public.

    It is easy to whip up a frenzy among the uninitiated by the use of misleading, if not outright false, statements of fact and law, and especially through the use of buzz words that do not withstand analysis or subsisting case law. I saw precisely this play out in the moral panic created my such misleading and/or false statements, leading away from any intellectual honest discussion/debate.

  17. Ronnie

    “A ?qualifying plaintiff? is limited as to whom it can initiate an action, in rem in one circumstance, and in personam in another.”

    What’s the standard of proof to show the plaintiff is, in fact, “qualified”?
    A currently-registered copyright notice at the Library of Congress?
    Or just the plaintiff’s word of honor that the property is theirs?

    Since there’s no real penalty for copyfraud (How many have been prosecuted for it?), there’s NOTHING to stop ANYONE from claiming ANY property is theirs and, presuming the defendant can afford to mount a defense, simply going “Oops, my bad!” and going scot-free after disrupting the defendant’s website for weeks, months, or years!

    Ever hear of Dajaz1.com?
    Look it up.

  18. Billy Hollis

    I notice that you’re not getting a snarky response to this well written comment. And yes, it should indeed have been unnecessary because the author of the post should have made those connections himself. I suppose he’s buried himself too far into an untenable and unsupportable position to do that.

    Why, oh, why do some lawyers play the game Evan is playing here? They ignore real world events to push some post-modern, personal interpretation of the language, and then assert with no real-world evidence that their interpretation should carry the day. Do law schools train people to do that?

    By the way, for full disclosure, I make a substantial amount of my income via generation of intellectual property, so I have a strong interest in protecting it. But I can see SOPA for the big government/big company favoring monstrosity that it is. For it to be any use to me, I’d have to prepared to see innocent people punished in major ways just because they happen to be vaguely connected to the infringement. I suppose Disney is perfectly prepared to do that, and government bureaucrats would just shrug and say “it’s the law”. Sorry, I have somewhat more moral responsibilities to my fellow man for that.

  19. Evan Brown (@internetcases) Post author

    Kai and Billy:

    I do appreciate your comments. I am not sure we are understanding one another as well as we could, so please allow me to address what I’m getting out of our conversation.

    The essential point of my post was to address a particular and common misreading of SOPA, namely, that the definition of a site “dedicated to the theft of U.S. property” makes it possible for *user generated* content to bring down the site on which it is posted. This is the most glaring misreading I see of the statute among those who err in commenting on it, Khan Academy being a conspicuous example.

    Kai, the example you gave of Dajaz1.com, while certainly illustrative, demonstrates the potential for a different sort of abuse. Sure, we can all agree that big content is often overzealous in its enforcement, and has every reason to want an expansion of power — which it will, unfortnuately, from time to time abuse — to protect its position as the incumbent.

    So although I had not heard the story about Dajaz1.com (thanks for letting me know), I certainly see your point in how that was a bad story of abusive and creepily incommunicado enforcement. That’s not good. And you’ll notice how I have not always been kind to SOPA if you listen to my comments in some past episodes of TWiL: http://twit.tv/twil

    Accordingly, since my discussion of SOPA was to address peoples’ misunderstanding of the consequences of enforcement against user generated content, and Dajaz1.com was not, as you acknowledge, a UCG site, I’m not sure how you and I find ourselves on the same page for discussion. I get the sense we may not disagree. That’s hard for me to actually come out and say, however, when I heard your position through a gloss of condescension and a kind of personal attack (by calling me naive). That sort of hurt my feelings. But I forgive you.

    Billy, kind of the same thing to you — from what I gather, your intent was to piggyback onto Kai’s criticism of my analysis, and then take it a step further by making an ad hominem attack on my profession and more specifically my approach to participating in that profession. I trust that if we were to sit down and discuss these issues face-to-face we would all be quite cordial to one another. My analysis was simply to look at the text of the statute.

    In any event, I’m grateful we have these opportunities to discuss the issues. Thank you for your comments, and I hope we can continue our conversation on this and other issues.

    1. Kai

      Hi Evan, thanks for the reply.

      Communication can be difficult, especially through this medium. I’ll say that when I said naive, I did not mean it in a negative way, I intended it as neutral. Perhaps it is a cultural thing? I am not from North America originally. To me, naive means to be ingenuous, trusting, innocent, not being aware of/not having experienced negative occurrences. Unless this is still considered negative? Though I do not understand why that would be, I apologise for it regardless, it was not my intent to attack you personally.

      As for the subject though. The crux of this all, is perhaps in trust. Dajaz1 is just the latest example of abuse, there are many, many more, just as egregious or worse. The reason those abuses occurred, were because of broad readings and enforcement of recent laws, with no evidentiary requirement and with no consequence for the abusers. For those of us who have been following these real world abuses, we have no reason to believe an expansion of abuses would not follow with an expansion of powers.

      It goes further than that even, to the general approach/attitude present as well. Chriss Dodd, after SOPA/PIPA were shelved, basically indicated that Hollywood donations are bribes. The music industry uses “pending lists” to profit from songs, without artist’s consent, then when taken to court, pay a fraction of what they expect individuals to pay for such abuses.

      Basically, you may, in the technical sense, be correct in your reading of the section in question. But the previous laws were passed, over objections, with the same rationale; that the technical reading was narrow and abuses would not occur. Myself, and the others that oppose it, are reading through a historical lens of real events, which is also correct.

      As an additional note: I am a content creator myself, I am far more concerned about large companies stealing my content (which is not at all uncommon) or destroying my means of being independent (through limitation of technology, etc) than I am of any group of websites, users or individuals doing so. Laws like these do nothing about the former (and might be used to increase it, actually – there are examples of competitors or detractors being silenced through use of current copyright laws), and have a major impact on the latter. I don’t know a single content creator, personally or through whose work I follow(and while anecdotal, that’s many dozens), who supported SOPA/PIPA. Most of them were rather vocal in their opposition, as I have been.

      Anyway, I really will leave it at that now. Thanks for the discussion, have a good one.

  20. john

    A website I help administer was, back around 2003, heavily involved in copyright infringement by our users. We tried to push back, but it just wasn’t going to work for us, because all the other competing sites were doing the same thing – that is, people were posting entire news articles to other sites. We were also infringed numerous times – and there wasn’t much we could or would do.

    Today, most of the stuff going up is not stuff from AP or Reuters, or even the local press. But there are still things like translations and other derivative works that go up. Again, it’s in violation, but in a way that’s widely accepted on the web.

    Furthermore, links to pirated content have declined, but that’s just due to changes in our audience. There are still numerous sites which aren’t primarily about piracy, but where people link out to potentially copyrighted content that skirts the limits of Fair Use. Fortunately, we’re not concerned with movies or music, or there’d be tons of stuff pirated. (We used to have a problem with people uploading music years ago, too.)

    The real risk of SOPA isn’t to the big sites; it’s these smaller sites that will get shut down. Once people figure this out, small sites, particularly political or controversial or polarizing sites can be shut down by turning the comment threads into virtual “piracy enablers” via links. Small teams of people could start trading links to pirated materials, and also operate a second campaign to link to these discussion threads.

    Imagine if pirates decided they didn’t like you – so they started to hijack old threads and turn them into lists of links into RapidShare or the old MegaUpload?

    Most sites would simply close the comments – and the web would be the worse for it. This interaction, like we’re having here’, is one of the great things about the web, and it’s worth defending.

  21. Peter Kaufman

    A friend and I argued about SOPA/PIPA at length. He linked to your post and I responded on my blog, dealfatigue.com as follows:

    “….a music executive friend of mine and I debated about the merits of the bills on Facebook. Much of what I wrote [on my blog post] was part of that debate. After I blogged about it, my friend posted a link [to blog.internetcases.com which is] in favor of the legislation. . . . In essence, the post in support argued that those in opposition – even those that took the time to read the bills – were misinterpreting the language and intent of the legislation. However, the fact that the language may be open to misinterpretation or, as many believe, exposes the true intent of the legislation, proves my point. If this legislation is broad enough to be misinterpreted by so many people, including intellectual property/entertainment lawyers, law professors, media executives and politicians, then they certainly can be and will be used for unintended or nefarious purposes if they become law. . . .”

  22. Brad

    I am a content provider.. a photographer.. and I am against SOPA/PIPA for a very simple reason.

    Its not about whether one rogue user could shut down Facebook because they have posted an illegal video. I know that’s not true.

    Its about the fact that Facebook will have to put measures in place to make sure a rogue user cannot post an illegal video. They will have to add levels of monitoring to make sure that users have permission to post the content they are adding. They will have to do this because SOPA/PIPA puts the burden of such monitoring on them (instead of the content owners and law enforcement, where it should be). This will cost money. Even if its only pennies per user per year, it will cost money. If it costs 10 cents per user .. multiply that by 1,000,000 users. Who pays for that? How can a “free” service stay free at that point?

    And its not just Facebook. It’s Twitter. Tumblr. Google. GoDaddy. Smugmug. Photobucket.

    Its any site that allows users to post content. Each of those sites.. 10 cents per each of those sites’ users.

    Its legislation that will cost those sites trillions of dollars collectively to put measures into place… just to try and prevent lawsuits from happening in the first place. Before any lawyers even get involved.

    Nevermind how much it might cost if they are actually taken to court and have to shut their site down while they defend themselves.

    The alarmist in me says that Big Business is doing this in order to shut down the small content provider… because quite frankly, the only content providers I see being able to afford to distribute over the Internet are the Big Guys… the ones who have money.

    As a small business provider who uses things like a website from GoDaddy, twitter and Facebook accounts, and Google to get the word out about my content… well, it would make that nearly impossible.

  23. Moses Avalon

    A vital amd critical point is being ignored.

    Of all the SOPA debates, and I’ve read quite a few, this is by far the most intelligent and on-point, so my thanks to Even for hosting it. I know this can be a rough and frustrating subject to moderate.

    The media and indeed even this forum seem to think that SOPA is a content verses tech battle, but what is over looked is the fact that Big Phara is hugh supporter of SOPA as well.

    I think all the snarky tech-biased remakes take on a rather callous and evil tone when you remove their rebuttals from the framework of artists and rich movie executives missing a Beemer payment or two because of infringment and re-frame it into the very real possibility that people are buying unlicensed pharmaceuticals from “rouge sites,” putting their health at risk, and all the while Big Data makes money advertising and pushing them traffic.

    It’s a safe position to take when you state, why should we compromise the “free flow of information” if it means Hollywood loses a few bucks, even one has some contempt for Hollywood, but what about trying to defend the compliance SOPA would mandate if it means saving lives?

    Any anti-SOPA folk care to comment on that?

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