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  • Free Speech: An Unintended Victim of Protect IP and SOPA?

    Is Congress about to limit freedom of speech on the Internet? Two bills wending their way through the Senate and the House may do just that.

    The proposals, known as the Protect IP Act (PIPA) and the Stop Online Piracy Act (SOPA) are aimed at stopping foreign-based Web sites from distributing copyrighted material, such as Hollywood movies, in violation of U.S. law. Such online “piracy” is a real problem, and since many of the so-called pirate sites distributing content are based off-shore, they have been able to operate without interference.

    PIPA and SOPA would try to limit the reach of these pirates by enlisting the help of U.S.-based third parties used in their operation. Most controversially, they would require Internet service providers to block the IP addresses of sites found to be infringing intellectual property rights. This provision, however, has met with a hailstorm of criticism from Internet engineers and others, who argue that such interference with Internet connectivity would have unpredictable effects on the operation of the Web, possibly threatening Internet security. It now looks likely that these provisions will be dropped.

    Other provisions, however, also raise concern, among them ones that would prohibit search engines such as Google and Yahoo! from including pirate sites in their search results. In effect, the search engines would be placed under a gag order, prohibiting them from disclosing the location of rogue sites.

    This remarkable restriction goes well beyond current law, which requires the “takedown” of content that infringes on intellectual property rights. Under PIPA and SOPA, no portion of a rogue site may be linked—even pages that contain no infringing content.

    The constitutionality of this provision is uncertain. Many legal scholars, such as Marvin Ammori of Stanford Law School, argue that this requirement directly violates the First Amendment. Although use of copyrighted content is largely unprotected by the First Amendment, Ammori points out that content merely associated with copyrighted material but is itself not infringing is entitled to traditional First Amendment scrutiny. This includes much content covered by the proposed restriction—for instance, background material on a site otherwise used for infringement.

    Under current case law, it is unclear how a court would rule on the constitutionality of the legislation being considered. But whatever the legal argument, the restrictions imposed on search engines by PIPA and SOPA erode freedom of expression on the Web. It’s as if Rand McNally were banned from incidentally including on its maps locations where illegal drug sales are known to occur. (Importantly, the legislation would bar provision of hyperlinks in response to any search query, not just those that specifically request links to illegal content.)

    Why should anyone care? After all, few would defend the activities of these pirate sites. But limits on speech here are almost certain to be extended to other cases. If links to pirate sites are banned, why not links to sites disseminating national security secrets? Or sites “facilitating” violence by propagating extreme political positions? Moreover, other countries that have pursued content controls of their own, such as China, may be encouraged by steps in the U.S. to limit content.

    Intellectual property rights to content on the Web should be vigorously defended. But not at the expense of the freedom of expression that has made the Internet such a vigorous and dynamic communication tool. The limits being considered by Congress, while well-intended, are a step too far.

    Posted in Economics [slideshow_deploy]

    8 Responses to Free Speech: An Unintended Victim of Protect IP and SOPA?

    1. Lucy says:

      You spelt "intended" wrong.

      In all seriousness, SOPA or PIPA would enable entertainment companies to prevent negative reviews of their works from being available in the USA, on such flimsy grounds as a small portion of copyrighted work is used – a clip or quote from a film, a screenshot of a videogame, a poster for a film, etc. Although these uses of copyrighted works should be protected by the "fair usage" clause of copyright law, entertainment companies already very deliberately abuse their rights as set out in the Digital Millennium Copyright Act in order to issue takedown notices for such content in the context of a negative review. Now imagine they can get an entire website taken down on the same grounds, and the owner of that website would have no right to due process, or to ever have his/her website restored.

      I don't believe for a second that these bills weren't deliberately drafted in a way that would enable these companies to do exactly that. It is a continued irritation for them that they cannot control what is said on the web about their company and their products. A single social media campaign can spell disaster for the launch of a new product, and they really, really hate that.

    2. Tom says:

      Amazing to see free-market conservatives arguing in favor of the entitlement mentality. People now have an entitlement to the stolen property of others. How communistic.

      Also amazing is seeing Heritage going so libertarian–that is, against the concept of justice. The government blocking access to stolen property is now bad. What you are saying is that if someone should steal your car, no government action may be taken to prevent third parties from making use of it, as that would violate a right of travel. Justice is discarded.

      Let actual information, not the mindless and uneducated mumblings of illiterate Tea Party hicks, guide your position here. More information is forthcoming, and pros and cons of the bills will be discussed. But whatever comes out, put justice as the priority.

      • Bob says:

        "What you are saying is that if someone should steal your car, no government action may be taken to prevent third parties from making use of it, as that would violate a right of travel."

        That is quite possibly the worst analogy I have ever heard in my life. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

    3. "It’s as if Rand McNally were banned from incidentally including on its maps locations where illegal drug sales are known to occur."

      This is a terrible analogy. One does not go to an Atlas to find information on drug dealers. If you already had a drug dealer's address, you might want to go to an atlas to figure out where that street was located, but the information about the street contained in the Atlas does not in any way facilitate the drug transaction without you already knowing that the drugs may be purchased there.

      The analogy could only work if every new edition the Atlas had little marks on the maps indicating places where you had a high likelihood of being able to find someone to sell you the drugs. The way search many search engines work today, if you enter the query "<movie name> Torrent", about 40% of the links returned will allow you to pirate the movie (and 40% will infect your computer with a virus or other malware). In this way, current search engines could be said to aid and abet piracy.

      This is not saying that there are not issues with the bill; I'm just faulting the analogy used.

    4. Averi says:

      We all know that money and profits have a great deal to with opposition to these laws. SOPA and PIPA are responses to unwillingness and stonewalling of internet giants to work with copyright holders. Had they built copyright infringement safeguards into their business plans from the beginning, like traditional businesses must, they wouldn't be facing large costs now to create this infrastructure. There has been a masterful PR campaign by the internet giants to create blame, fear and deflect all responsibility back to the legislators. Instead of coming to the table to negotiate, the internet giants have created a fear-based coalition to resist any legislation. There is no doubt that some companies have used the hysteria over SOPA against their competitors. We need to be mindful of how much influence these billion dollar companies have over the flow of information. The general public really doesn't realize how companies that fight for "free speech," deny it with extreme bias in the way they control of search results. In the upcoming election, many people will be directed to the new "Election help sites" created by these giants to influence based on their interests. Of course, these sites will have the appearance of being impartial.

      • talers says:

        We also know that money and profits have a great deal to with SUPPORT for these laws. Give me a break! And as to the information flow, there was barely a whisper that our Congress, together with the media and entertainment industries, were planning this hugh and potentially catastrophic implementation of law. It's only thanks to the flow of information from Internet geeks that the public was even made aware of the proposed acts.

        No one is impartial, but, dear God!, let's at least be sure that the "fix" does not threaten the structural integrity and security of the Internet! The potential for damage by SOPA or PIPA is huge. More research and eduction is called for. A serious look at the third alternative, the OPEN Act, is also warranted.

    5. Theodore Mendoza says:

      If congress follows through with such acts it would be a direct violation of our first amendment. This would be the first step in depleting the rights we as American people are naturally guaranteed. Piracy will always be a problem as long as the internet exists, but it is the job of the responsible part of this culture to find other means of gaining profit and cencorship without conflicting with the rights our forefathers worked so hard in order for this country to gain.

    6. Guest says:

      Now that people are aware of SOPA/PIPA, it might be worth mentioning ACTA. Same interests, same goals, same problems. With the addition of Obama claiming he can sign an executive agreement to bypass Senate approval (which then-Senator Biden objected to Bush once trying to do), to create a new international organization to handle the internet content oversight. All negotiated in secret (for "national security"… but Hollywood companies participated), and even now, signed, only available from japan and wikileaks. I'm not a Republican, but It's just bizarre to see USTR saying here's an executive agreement (aka treaty, with force of US law), and if you'd like to, at last, read it (now that it's final and signed), just follow the link below to japan.

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