America’s Great Firewall?

January 19, 2012

Words matter, and hyperbolic rhetoric is annoying no matter who uses it. I was therefore predisposed to support Isaac Stone Fish’s FP Passport post on the use of China comparisons by folks fighting against SOPA/PIPA, a proposed U.S. scheme to fight Internet piracy. His basic point? Whatever one may think of these draft laws, the rules would not create an American version of the Great Firewall.

Of course. The fight against SOPA/PIPA (the Stop Online Piracy Act/Protect IP Act) is a big, dramatic brawl, pitting the entertainment industry, and their very powerful stooges lobbyists, against a coalition of Internet companies that would be effected by the law as well as free speech/Net activists. There has been irresponsible rhetoric, including misleading and ignorant statements, on both sides. So I wouldn’t have been surprised if the new law had been characterized as the work of Satan himself. That’s how lobbyists and activists do things.

But yeah, it’s a good idea to point out when rhetoric goes too far, like when Wikipedia suggests that SOPA/PIPA would end “free knowledge” — that’s just nonsense. On the other side, the content owners, the ones who are responsible for pushing the latest IP power grab, certainly aren’t covering themselves in glory. I for one question the entertainment industry on a regular basis, including the fabricated piracy statistics that they periodically issue, usually through a proxy research firm, and then spoon feed to their “friends” in Congress. It’s good to know that these games are now well understood by folks writing about online IP issues, and not just lawyer geeks like me and my friend Danny Friedmann at IP Dragon. I was pleased to see this in Wired‘s rundown of SOPA/PIPA:

They [SOPA/PIPA] are in response to Big Content’s (.pdf) arguments that hundreds of thousands of jobs are lost every year due to pirate websites. These numbers are largely unsubstantiated and rest on the assumption that if a person had not gotten a copy of a movie online, they would have paid full price for a DVD or CD.

Preaching to the choir.

Big Content (I like the label) has been waging this war for decades now, fighting against audio cassettes, VCRs, and other new tech, always claiming that the latest gizmo will run everyone out of business. With online piracy, they were faced with a much more formidable set of opponents, and there have been many other legislative proposals, some of which have gone down in flames, while others like the Digital Millennium Copyright Act were enacted into law (and promptly abused, as some would say).

SOPA/PIPA is merely the latest battle, and Big Content always says that if it doesn’t get its way, trillions of jobs will be lost and entire industries will go under. Blah blah blah. As if they hadn’t already successfully cleaned up the U.S. piracy scene and are now simply going after the offshore remainder.

Don’t be fooled by the sob stories. Big Content, or at least sub-sectors of the entertainment and software industries, have actually made a lot of headway in stopping piracy. Yes, it’s still relatively easy to download an MP3, movie or TV show. But the big domestic bad guys have been defeated. Napster, YouTube, IsoHunt — gone or forced to clean up their act. Moreover, with some of the civil litigation that has been used against individuals in the U.S. and cooperation with institutions like universities, a lot of people just don’t bother anymore. Let’s face it, your average Grandma isn’t going to get on IRC or a BBS and troll for an invitation to Demonoid.

Who are the remaining bad guys? Foreign sites in “friendly” jurisdictions, like Pirate Bay or KickAss, or companies that offer cloud-based storage systems, which can be very tough to police as they are not as transparent as search-based platforms. This is the final frontier, and SOA/PIPA is today’s weapon of choice.

Why all the complaints? Here’s a list of the offending portions of SOPA/PIPA:

The bills give the Justice Department the power to seek court orders requiring search engines like Google not to render search results for infringing websites. (The proposals are vague and broad when it comes to defining an infringing site.)

The bills also allow the Justice Department to order internet service providers like Comcast and AT&T to block their users from visiting blacklisted sites.

The SOPA proposal bars the distribution of tools and services designed to get around such blacklists. The ban could arguably cover tools such as VPNs and Tor used by human rights groups, government officials and businesses to protect their communications and evade online spying and filtering.

The proposals grant rights holders the ability to demand that judges order ad networks and financial institutions to refrain from doing business with sites right holders say are infringing.

The measures also give out legal immunity to ad networks and financial institutions that choose, without a court order, to stop placing ads or processing transactions for websites they deem are dedicated to infringing activity.

Copyright holders would face little penalty for filing takedown claims without doing due diligence or considering “fair use,” encouraging even more abuse of copyright takedown lawsuits.

The DNS provisions, arguably the worst of the proposed legislation, have reportedly been dropped, but we’re still left with a lot of troubling language that might even violate U.S. constitutional protections of free speech and due process.

So what is everyone upset about? Depends on who you are. Keep in mind that many of the Internet companies involved in yesterday’s blackout are not just doing this out of the goodness of their hearts. For them, this is serious business. If SOPA/PIPA were enacted, it would mean a significant extension of liability. In other words, these companies would have to spend a lot of money complying with the new rules, and would still need to worry about civil suits.

These companies are wisely avoiding talk of their private financial/legal concerns and instead emphasizing feel-good language relating to freedom. It’s good PR. All those young Net activists out there energized over this issue probably wouldn’t be so excited if they knew that their hero Net companies are significantly motivated by the bottom line.

To be fair, though, a lot of other organizations and individuals (including me) are worried about free speech, due process and the effect of the law on the Internet itself. I also don’t think Google should be saddled with expensive mandates just to satisfy Big Content, but that’s of secondary concern to me.

It comes down to this: the law would essentially put into place a system whereby a site can be blocked by the U.S. government, acting on a private complaint, based on content. And this is where the China comparisons come in. But are they fair?

No, of course not, at least once you get beyond superficial aspects. The Great Firewall in China is a vast, complex system operated by the government that includes, among other things, site and page blocking based on content, and keyword filtering. Yes, SOPA/PIPA would institute a content-based site blocking regime, but that’s a very generalized description.

Some free speech advocates have warned that SOPA/PIPA would be used to stifle political speech, and this is undoubtedly one of the charges that has led to China comparisons. Consider this language from Ivan Sigel and Rebecca MacKinnon, which seems slightly inflammatory:

The problem is that the bills’ legal and technical solutions are very similar to mechanisms that authoritarian regimes use to censor and spy on their citizens.

Now, I’m not saying that the above is inaccurate. Ivan and Rebecca know a lot more about this topic than I do, and I think we’re on the same side of this issue. However, whether the legislative solution proposed has some similarities to tools used by repressive regimes seems like a strange way to evaluate the merits. In this case, there are many excellent arguments against SOPA/PIPA that have nothing to do with foreign government practices. (I would make an exception for the provisions relating to VPN usage, though. That’s a special issue that does involve foreign government practices.)

Would SOPA/PIPA be used with respect to political speech? It’s a possibility, but I’m not going to lose any sleep over that. This is an industry-based initiative designed to block access to sites like The Pirate Bay because of copyright infringement. Stopping political speech, using a copyright infringement argument, would be difficult at best, and without an entire government apparatus designed to support such activities, such incidence would be exceedingly rare. Would I want the government to get its hands on this sort of apparatus? Of course not. But even then, I wouldn’t compare that to the situation here in China.

What about non-political speech? The Great Firewall also goes after pornography and other offending content. Doesn’t SOPA/PIPA do the same?

Yes, this is the heart of the free speech concerns, that fair use of content would be sacrificed at the altar of intellectual property protection. Big problem, and reason enough to be against the new law. However, even here, we’re still dealing with industry going after sites/users on an ad hoc basis because of specific content, not an entire category of information banned by the government (like pornography) and supported by an entire administrative apparatus. Again, the comparisons with China fall way short.

There is plenty to dislike about SOPA/PIPA, and its industry overlords, without throwing out wild charges. Those of us who are against the draft law should not resort to the rhetorical tactics of Big Content, using the spectre of China’s Great Firewall to win support for our side.