Overbroad Censorship & Users

A lot of good stuff has been written about why the currently pending Stop Online Piracy Act (SOPA) is bad for the future of the internet, the technology industry, international human rights, security, free speech [pdf], privacy, blind people and jobs. One thing I haven’t seen is a succinct description of the problems of site-wide censorship when it comes to ordinary, non-infringing users. So... I’ll try to do that here.

SOPA’s unit of analysis is a “site or portion thereof” See Section 102(a). By contrast, if a portion of a site is infringing, SOPA’s unit of censorship is everything at the domain name. See Section 101(17), 102(c)(2)(B) and 102(c)(2)(A).

The harm that does to ordinary, non-infringing users is best described via a hypothetical user: Abe. Abe has never even so much as breathed on a company’s copyright but he does many of the things typical of Internet users today. He stores the photos of his children, now three and six years old, online at PickUpShelf* so that he doesn’t have to worry about maintaining backups. He is a teacher and keeps copies of his classes accessible for his students via another service called SunStream that makes streaming audio and video easy. He engages frequently in conversation in several online communities and has developed a hard-won reputation and following on a discussion host called SpeakFree. And, of course, he has a blog called “Abe’s Truths” that is hosted on a site called NewLeaflet. He has never infringed on any copyright and each of the entities charged with enforcing SOPA know that he hasn’t.

And yet, none of that matters. Under SOPA, every single one of the services that Abe uses can be obliterated from his view without him having any remedy. Abe may wake up one morning and not be able to access any of his photos of his children. Neither he, nor his students, would be able to access any of his lectures. His trove of smart online discussions would likewise evaporate and he wouldn’t even be able to complain about it on his blog. And, in every case, he has absolutely no power to try to regain access. That may sound far-fetched but under SOPA, all that needs to happen for this scenario to come true is for the Attorney General to decide that some part of PickUpShelf, SunStream, SpeakFree and NewLeaflet would be copyright infringement in the US. If a court agrees, and with no guarantee of an adversarial proceeding that seems very likely, the entire site is “disappeared” from the US internet. When that happens Abe has NO remedy. None. No way of getting the photos of his kids other than leaving the United States for a country that doesn’t have overly broad censorship laws.

There are millions of US internet users just like Abe. If you are one of them, I urge you to make your voice heard by going to AmericanCensorship.org or EngineAdvocacy.org/voice.

* All names of services meant to be fictitious.

Images are public domain, sourcing here.


Haro said...

Mr. MacGillivray,
I wish to get to the bottom of what the proposed SOPA legislation can and can't do and would like your professional opinion on the matter. Would you be willing to take some time out of your busy schedule to answer a few questions? Thank you for your time.

Anonymous said...

This is what happens when something like Rico Statutes for catching the mob has other implications. There is only one crime described in the Constitution. Treason. The reason it is there is because the founding fathers had that prominently in their minds and because in England, if a member of the a little village was found guilty of treason, then the king or queen would kill everyone in the town. That is called the constructive theory of treason. It says there must a be a conspiracy, and to make sure we have quashed it, we will kill everyone, including women and children.
So when Aaron Burr, the third Vice President of the United States, was tried for treason, for being part of a conspiracy to attack the Washita lands(part Texas/Mexico),even though he had bought 400,000 acres. John Marshall, Chief Justice of Supreme Court, in his District Court trial Marshall ruled treason only if 2 witnesses to overt act. Burr was acquitted and conspiracies had to be proved. So SOPA legislation believes that the conspiracy must extend to everyone in the village. How primitive. That type of rule belongs in Syria where they just murder the whole town or city, but not in the USA.

iam_seanmcc said...

Mr. Macgillivray,
I appreciate your simple illustration of how SOPA & PIPA could impact "regular" users of the Internet. There is, however, another way this law could affect both individual and organizational users, and one that I believe has been largely ignored from the conversation. Now, I'm not a lawyer, but I believe that the concept of fair use, as defined in 17 U.S.C. § 107, would find itself in direct contention with the provisions of these bills. The fair use of a copyrighted work should either be provided for as an exclusion or an affirmative defense against injective actions and prosecution. Neither bill seems to even consider existing code or precedent in their heavy-handed and blanket approach to protecting IP. I understand the need for a mechanism to address the complaints of IP owners, but any approach that so blatantly ignores protections for speech, press, and academia is not the answer.

iam_seanmcc said...

Typo in my last comment, and it seems I cannot edit it. fourth line should read "The fair use of a copyrighted work should either be provided for as an exclusion or an affirmative defense against injunctive actions and prosecution."