The SOPA Myth

Anything that Google, Wiki, GoDaddy, and WordPress is against must be bad, right?  So it seems to be in the world of the pending SOPA legislation.  The sad part is, I have seen very few people actually speak facts regarding the “controversial” bill.  I put that in quotes because I do not understand why there is controversy?

Before I can support a bill to be passed at the federal level, I first check that the subject matter is even anything they should be doing.  In most cases, I conclude they are debating bills that they, Constitutionally, should not even be considering.  Armed with my Constitution, (something I bet only half the people in DC have in their desk drawer) I conclude for two reason the subject matter to be Constitutional.  First, Article 1 Section 8 includes, “Congress shall have the power to…promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”  the section ends with the statement they may pass laws to enforce this.  Of course, at the time of the Constitution, they had no clue about CD’s, movies and such, but of course, over time writings and discoveries became to include books, movies, music, etc.

Secondly, Congress often abuses this part, but, in this case, this is certainly interstate commerace as the web certainly sells products over state lines.

With that out of the way, we can get to the meat of the issue and the bill.  Before we do that, we must agree on a couple of fundamentals.  Sadly, these are not universal, as some people not only engage in this behavior, they see nothing wrong with it.  We must agree downloading music without paying the price set by the rights holder is wrong. (It is illegal, regardless of contrary opinions)  The same is true for movies, software, etc.

This bill is intended to put a stop to these actions.  I Google’d “SOPA bad” and had a very hard time finding many facts of the bill, just opinion saying it will not work.  Okay, so the opinion is it will not work.  If it will not work, why the opposition?  One common complaint I have heard is the bill will give the government the power to shut down sites if they contain material the government finds offensive.  Let me discredit that myth right away.  From the bill, on page 2, Sec 2. “Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution.”  In other words, people like me who bash Obama, the Congress, and the government in general are as safe as we are right now.

Another fear being said is that bill is so broad the government could shut down sites like Google or Facebook if they contain even a single link to an illegal download.  First, that is not true, but, let’s pretend it is.  Current drug laws could be used to confiscate an entire mall if someone is caught selling a dime bag of weed in the parking lot. (I do not know what a dime bag is, but I’ve seen it in a copyrighted movie once)  How many malls have you seen confiscated by the feds? I can assure you, many a drug deal goes down on mall property, I asked my drug dealer.

Currently the government has blocked all on-line gambling sites such as PartyPoker.  I was against that bill for I did not see where in the Constitution Congress could regulate gambling.  However, that legislation was similar to this.  How many abuses of that power have you seen?  The feds have not shut down St. Catherines Parish advertising their Sunday bingo sessions, though, technically, they are advertising gambling.

The government should have the power to stop illegal activity.  We deserve, and expect, our local government to put a chop shop out of business when it is proven they are doing illegal things.  They do the same thing with meth houses and their attempts bringing down the mob continue.  Why are people against the government stopping illegal downloading of copyrighted material?

As stated earlier, I have actually read the bill, you can also: http://www.gpo.gov/fdsys/pkg/BILLS-112hr3261ih/pdf/BILLS-112hr3261ih.pdf

From the bill:

DEDICATED TO THEFT OF U.S. PROP2
ERTY.—An ‘‘Internet site is dedicated to theft of
3 U.S. property’’ if—
4 (A) it is an Internet site, or a portion
5 thereof, that is a U.S.-directed site and is used
6 by users within the United States; and
7 (B) either—
8 (i) the U.S.-directed site is primarily
9 designed or operated for the purpose of,
10 has only limited purpose or use other than,
11 or is marketed by its operator or another
12 acting in concert with that operator for use
13 in, offering goods or services in a manner
14 that engages in, enables, or facilitates—
15 (I) a violation of section 501 of
16 title 17, United States Code;
17 (II) a violation of section 1201 of
18 title 17, United States Code; or
19 (III) the sale, distribution, or
20 promotion of goods, services, or mate21
rials bearing a counterfeit mark, as
22 that term is defined in section 34(d)
23 of the Lanham Act or section 2320 of
24 title 18, United States Code; or

(ii) the operator of the U.S.-directed
2 site—
3 (I) is taking, or has taken, delib4
erate actions to avoid confirming a
5 high probability of the use of the
6 U.S.-directed site to carry out acts
7 that constitute a violation of section
8 501 or 1201 of title 17, United States
9 Code; or
10 (II) operates the U.S.-directed
11 site with the object of promoting, or
12 has promoted, its use to carry out
13 acts that constitute a violation of sec14
tion 501 or 1201 of title 17, United
15 States Code, as shown by clear ex16
pression or other affirmative steps
17 taken to foster infringement.

 

blah, blah, blah

The important parts above are the site is PRIMARILY designed or operated for the purpose of … the sale, distribution, or promotion of goods, services, or materials.  I left out the legalease mumbo jumbo referring to the US code sections related to copyright infringement and such.  The point of all that is the site must be primarily used to facilitate the distribution of illegal materials.  Putting a link on Facebook to my server for people to illegally download a song will not put Facebook in jeopardy of being blocked in the entire US.  They are targeting websites like the old Napster, Kaza, and other sites that serve little purpose than to facilitate the exchange of copyrighted materials.

 

The next major objection is that the government can just decide to shut down the site.  That is simply not true.  That is like saying the government can see the the drug dealer making a sale and they can put him jail for 20 years.  He is still entitled to due process, which includes a trial, and judgment.  This bill specifically states the government must notify the owner of the website of their illegal actions.  The bill gives that owner the ability to defend his site. (see page 29 of the cited pdf.)

Anyone that knows me knows I despise most of the bills passed by our government. However, this is almost a textbook definition of what our federal government should be doing besides defending our country.  There is no “free market” solution to this problem and only the government can stop this illegal behavior.

As of this writing my Congressman, Tom Graves, has stated he will be voting against this bill.  Congressman Graves is great congressman and I have agreed with nearly every vote he has made.  I understand Graves must vote with his conciense and the will of the people he represents.  I hope if you are in his district, the current or new one, you will take time to let him know you hope he will change his mind.

I fear this bill will not be passed, not because it is a bad bill, but because of all of the mis-information concerning the bill.

 

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6 responses to this post.

  1. Jeremy,

    My understanding, limited as it is, but not without some minimal research into the subject, is that the complaint is not with combating piracy, but with the intrusion of the police powers into the business affairs of non-offending third parties. Kind of like requiring a lawyer to do something to punish his own client for alleged crimes. Additionally, there are monitoring and regulatory issues that would be a hindrance to normal business operations.

    Unconstitutional? In current jurisprudence, probably not. Effective? Probably not. Burdensome to law abiding citizens and organizations? I don’t know, but that seems to be the consensus.

    I am uncomfortable with the federal government forcing private entities to participate in policing. I’m uncomfortable with it in the case of banks, and in the case of various internet services.

    But, I generally favor the protection of copyrights, and am a stickler for that sort of thing myself.

    Reply

    • Posted by Jeremy Jones on January 18, 2012 at 5:37 pm

      I think the key part, that many over look, is found on page 25 of the pdf version. The site must be “primarily” used for copyright infringement. In other words, these fears that Facebook would be blocked are not true, even if Facebook did nothing to remove offenders. However, currently, at the request of copyright holders, sites like Facebook and YouTube routinely remove copyrighted material.

      Reply

  2. Posted by john (the hubby of Jen) on January 18, 2012 at 8:14 pm

    Jeremy,

    While the bill is fine in principle, it is lacking in its clarity and effectiveness. The fact is, it wouldn’t work even if it was written well since pirate sites are simply more knowledgeable about pirating than the government is. Add to that how incredibly vague the legislation is and it’s really not hard to imagine a slick, Hollywood lawyer convincing a geriatric judge to issue a takedown order on Reddit. As a content creator and occasional victim of piracy, I would love to see some realistic way of dealing with this very real problem. However, I really don’t see that a bloated piece of poorly worded legislation is the way to do it.

    john

    p.s. Under the legislation, google.ca is a foreign site while thepiratebay.com is domestic. Good ol’ fashioned government logic. -j

    Reply

    • Posted by Jeremy Jones on January 18, 2012 at 10:44 pm

      John, I disagree with your premise. I think the wording is pretty clear. The site must be “primarily” used for copyright infringement.

      I do agree, no law will eliminate it, but making it harder is a good start. They did a good job making it hard/impossible for me to play poker online anymore (a law with which I certainly disagree) The same methodology would be used in this case.

      Reply

      • Jeremy, Who determines whether a site is “primarily” about piracy? The government? The record industry? I guess my question is, how much do you trust your government to do the right thing? We don’t need another useless law and another bloated government agency especially when there is no chance of this working. Ah well. At least the government managed to take down the evil gambling sites. ‘Cause, you know, they weren’t getting their cut.

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