Digital Culture Wars (SOPA, PIPA)
The recent congressional battle over the Stop Online Piracy Act (SOPA) has provoked unprecedented digital political activism in the United States. Libertarians, progressives, and technologists have formed a creative alliance to fight the bill. SOPA would grant sweeping, unprecedented powers to copyright and trademark owners, deny due process to alleged infringers, and menace free expression. Having researched “fusion centers,” a shadowy new law enforcement apparatus joining corporations and police forces, I fear that SOPA will accelerate surveillance by an unaccountable industry-government partnership.
The House’s SOPA and the Senate’s similar PROTECT IP Act (PIPA) are troubling proposals. Both SOPA and the milder PIPA would allow a federal prosecutor to obtain a court order against websites that infringe copyrights or trademarks, or sites that facilitate infringement. The bills do not require the court to grant basic due process protections to the target of the court order. They do give the court authority to bar any links or support for the targeted site from search engines, service providers, payment networks, and ad services.
Under SOPA, corporations in some situations would not even need a court order to take action against alleged infringers. They could just notify credit card companies of a “good faith belief” that a site was “primarily designed or operated for the purpose of” infringement, and the financial intermediary would have five days to stop doing business with the site.
SOPA and PIPA threaten to overturn a delicate balance between users, IP owners, and intermediaries established by the Digital Millennium Copyright Act of 1998. The DMCA requires intermediaries like YouTube to take down allegedly infringing content, but also requires them to put it back up if the user who uploaded it can demonstrate she is not infringing (e.g., under fair use doctrine). SOPA and PIPA would change the balance of power, encouraging Internet service providers, search engines, and payment processors to act as agents of content owners.
The bills’ sponsors have claimed that courts would ultimately step in to mitigate abuses of power granted by SOPA or PIPA. But the legal process can be agonizingly slow. For example, even though Veoh won the first round of a lawsuit filed against it in 2007 by a major label, the case is still on appeal. Funding for the enterprise dried up thanks to the uncertainty. By 2010, Veoh’s founder “had to sell the company [once valued at over $130 million] in a fire sale to a small startup.” It’s hard to imagine how such a start-up could even get off the ground in a legal environment more heavily tilted toward content owners.