Sunday, January 22, 2012

Dr. Strangelaws or: How I Learned to Start Worrying and Hate the Government [SOPA]


Disregard my last post.  The issue of net neutrality is much more important than my Programming Concepts class.  You see, unlike you digital natives that make up a huge chunk of the Internet, I remember when there was no World Wide Web.  I mean, for fuck's sake, I still capitalize the Internet like it's a proper noun!  We had freedom of speech, but not on the level that we have now - there was no free and open global exchange of ideas in a neutral forum.  We talk about this stuff a lot - how the Internet has connected people, led to a Renaissance of freethinking, spurred social movements under stalwart regimes, and led to the rise of independent artists - but it's sometimes difficult to see the trees through the forest of lolcats and Techno Chickens.  Yes, the net can be a frivolous thing.  Yes, people abuse that connectivity to distribute copyrighted material and child pornography, but way more people use it to stay connected to family and friends from out-of-state or country, to collaborate on art across state and country lines, to deliver information and education to those who otherwise wouldn't have access to it, and to fund projects to help develop the third world.  These things are great triumphs of humanity, they deserve your utmost attention, and they deserve your zealous defense.

So, how do laws like SOPA affect the wondrous Internet, democracy's most salient incarnation?  Let's take a long, long, long, hard look.

SOPA worked thusly: the U.S. Department of Justice maintains a "blacklist.".  Any rights-holder (let's say Universal Music Group) can mail a letter to the Attorney General\DOJ to have a site added to the blacklist.  Once approved, every Internet Service Provider (Comcast, Verizon) must then block access to this site.  Meanwhile, the rights-holder sends letters to any advertisers and investors of said site and notifies them of the pending blacklisting of it.  Advertisers are given a period of time to block said "violating" site from receiving payment or displaying their ads, and if they fail to do so, the advertisers will face penalties of fines, blacklisting, or liability for whatever damages Universal claims they incurred by the intellectual property "theft," which - if you've been paying attention - can be quite high.  I know it already sounds draconian, but let's get down to some of the specifics of why that's so ridiculous.

First of all, they didn't need SOPA to shut down copyright-infringing sites.  Their shut down of the MegaUpload family of sites serves as proof of this.  If you weren't familiar with MegaUpload\MegaVideo, it was a file upload, storage, and sharing site that (thanks to its reliability and ease-of-use) became a home for basically every copyrighted piece of TV and Movies out there - basically, a DropBox without moderators.  I was actually going to write a post a while back about how much I hated this site for restricting free viewing to 72 minutes; seriously, you can't charge someone to view content you don't own (and let's be honest here: MegaVideo was the de facto illegal streaming video site).  Still, the point here is that the government held MegaVideo responsible for the actions of its users rather than the users themselves.  If I build a road and you use it to traffic drugs, I'm not guilty of drug trafficking.  Now, the many legitimate users of MegaUpload pay for the actions of the handful of pirates.  SOPA hasn't passed, and yet, the DOJ was able to get an indictment together and raid the Hong Kong\New Zealand-based company.  So then, what was the point of SOPA?  To extend and expand the government and publishing industry's jurisdiction and influence while side-stepping civil rights.


Right now, the U.S. government can only apply its laws to companies and individuals within its own borders and otherwise needs to coordinate with foreign police and statutes to do anything more.  If SOPA had passed, the government could ritualistically black out any site that had ever at some point linked to illegal content so that Americans cannot access it, even if it was accidental or done by its users (such as in the comments section).  Given that something like 20% of all internet traffic is American, that would severely hurt the site's ability to turn a profit.  Furthermore, the blacklist would force advertisers to drop that site as well, and with the majority of internet advertising agencies being in America (Google Adwords, for example), the site would be effectively dead.  Stopping a site from making money and shutting it down are hardly different, and with a law like SOPA in effect, the American government would have the power to do this whenever it wanted and regardless of the laws in the hosting country, effectively expanding the dominion of U.S. IP law.  For example, in Canada and some other countries, it's perfectly legal to send protected content to one another, so long as it's not done for profit - essentially the "Can I borrow that movie?" of the digital world.  All in all, by controlling what sites every resident and advertising agency in America can support, the U.S. government would be using the school yard "You guys aren't playing by the rules I made up, so I'm going to take my ball and go home" argument on an international scale.

Whether or not you think the U.S. DOJ would misuse this power, do you think it should even have it?  Do you want the government determining what information can be seen and what information cannot?  Which artists can make money and which ones cannot?  Which speech should remain free?  It might sound like hyperbole to say that, but the fact is that even in the countries that we consider first-world free nations, when a government sets up an internet blacklist to stop the spread of child porn or IP infringement, it grows well beyond that purpose to include anarchist and activism sites.  I mean, let's face it... if you have the power to silence your critics, wouldn't you?

Remove the stuff about the Patriots, genomes, and Y2K and it actually applies.  More importantly, I may not get another chance to post Emma Emmerich, and I love her.

Which brings us to our next problem: due process.  I know, I know, most of the time when you hear about due process, it happens to be coming out of the mouth of some fanatic, right?  Wrong.  Due process is a critical part of our justice system.  When someone is arrested, it's "a jury of peers" that decide if they're guilty and what punishment they should get.  That way, the final determination of guilt and gravity is in the hands of the very people that make up society.  It's an important civil - no, human - right.  We can't leave it up to politicians and policemen to determine whether we should be in prison because that's the difference between us and an authoritarian regime.  SOPA leaves the interpretation of copyright violation up to the department of justice - i.e. federal police - and then doles out shutdowns and blackouts without any notice, hearing, or trial.  It would have subverted the basic checks and balances of our government and handed authority to a group of appointed officials who are beholden to the publishing industry, not us.

In fact, if you consider it, we're talking about policing of the Internet by the record and movie industry.  I mean, they're the ones sending the notices, and if there's no trial, where do we come in at all?  Boycotting their movies?  There's only one MPAA, one RIAA, one ESA (though maybe two, soon), and one BSA.  You can't boycott everything!  Elections?  There's only two real parties in this country, and neither of them cares about Net Neutrality.  Besides, this is one issue amidst all the gun control, abortion, wars, economic, and environmental issues.  How important is this one area of legislation to most people?  "But Erd," you say, "We'll be able to hold our leaders accountable when they overstep the 'only pirate sites' intent of the bill."  We would, yes, but there was no transparency in SOPA.  All of the blacklisting would be done behind closed doors, and at best we'd find out about it after the fact when WikiLeaks reports it.  That is... if the government allowed us to see WikiLeaks.

But beyond the specific sites that would be blocked, you need to consider that all laws against free speech have a chilling effect.  By outlawing - say - a video sharing site, you effectively increase the risk of owning or maintaining a video sharing site.  When your friend gets caught by a police speed trap, you get a little more cautious when you drive through that area.  If SOPA was in effect years ago, it probably would've struck down YouTube.  Would we even have a YouTube now?  Or Tumblr?  Last.fm?  I assume that great ideas like these were inevitable, but Wordpress and Facebook didn't get to where they were without competition from BlogSpot\Blogger and MySpace.  Stifling competition and start-ups means slower innovation or - from a global economic point of view - innovation elsewhere.  Would you rather the next big tech company headquarter and employ its people here... or overseas?  Already, many investment bankers have said they'd be disinclined to invest in American Internet businesses if SOPA or similar laws pass.  The chilling effect rarely is as obvious and blunt as that, and with so much of our economic progress tied to the Internet we created, it sounds like a risky gambit just to placate the RIAA.


And since we're sticking with the esoteric and abstract, think about how low SOPA sets the bar for burden of proof.  In the strictest sense, since there's no trial, there's no real need to prove anything, but let's assume that the DOJ would have seriously reviewed every such instance.  Given how many frivolous DMCA notices are sent on a daily basis, the DOJ would probably just resort to shutting down sites first and reviewing them later.  Meanwhile, the site would already have lost its funding for a time - or permanently depending on how hesitant advertisers and investors would be to restore their services.  When I originally addressed the problems with the DMCA, I pointed to a similar issue that basically breaks down to this: When we automate due process, burden of proof essentially shifts away from the accuser.  Nobody has to prove that the content is being used illegitimately, you just send a form notice that everyone's afraid to fight, and the accused is left to prove that the use was legitimate.  "Innocent until proven guilty" isn't just a catchy slogan Cops throws out there, it's a tenet of our legal system.  Granted, this is somewhat similar to the detainment of suspects until trial, but normally people accused of crimes have the ability to post bail and bring wrongful arrest suits.

SOPA's clause regarding right to sue for abuse of process intentionally made it impossible to bring suit - you needed to prove that the person didn't just wrongfully shut your site down, but actually knew it was wrongful and did it to intentionally hurt you!  Essentially, Sony BMG had nothing to lose by having your content dropped until such time as you had mounted some legal defense that was so clear and obvious that the DOJ would be forced to remove you from the blacklist, and during that period of time you would have lost funding, users that may or may not come back once your site is restored, and of course sunk money and time into defending yourself with no recourse for remuneration.  At least with the DMCA, there are safe harbor privileges established for sites that try to police their content (though they still fail to address this problem well).  It's these safe harbors that protect sites like YouTube from serious litigation, but SOPA would have eroded those protections, nominating even the sites that play fair for the chopping block!

Now, they would never have killed off Google, YouTube, or Facebook like some SOPA posts have suggested.  I mean, if they did that, it would be way too obvious to the average American that these laws were overreaching and stifling of free speech.  Still, the basic premises of SOPA were some of the slipperiest slopes we've seen.  Consider the rule that sites linking to infringing sites would be blocked as well.  Now, remember that the World Wide Web is built on hyperlinks.  Anywhere you go, there are hyperlinks to other sites, and from those sites to even more sites.  Under laws of this nature and scope, you couldn't safely post a link to any other site without first reviewing every single page - and link - therein.  Even one link to infringing content was grounds for blacklisting.  Obviously, they wouldn't waste their time on every rinky-dink site and chasing down every link, but it's not like printing a form letter takes much time.  Hypothetically speaking, all you would need to do is find one pirated movie and trace it backwards until, before long, the whole Web is "in violation."  It's called a web for a reason, and the lifeblood of the Internet is the interlinking of sites.  SOPA, in essence, would be a sledgehammer blow to one of the pillars of the Internet.


Did I say one?  I almost forgot about how SOPA would have screwed with DNS servers.  For those unfamiliar with how the Internet works, think of a DNS server as the Google Maps of server locations.  You need to go to the store, so you type in the pieces of the address that you have - on the net it's amazon.com, but for our metaphor you'd do street and ZIP Code.  Google Maps figures out where on the map that address is located and directs you.  If someone wanted to send you to the wrong place (like their fake PayPal site), they would simply change the map around, and before long you've shown up to a store that looks identical, but isn't.  You go in, buy your thing, swipe your card, and presto, that fake company has your information.  DNSSEC is an upgrade to the map that double-checks whether or not the map has changed since the last time you viewed it.  Laws that require the blacklisting of sites work by changing this map, so whether or not there are differences would be irrelevant - the damn thing changes every day!  DNSSEC isn't thwarted that easily though, and it will continue to search for a copy that hasn't been tweaked to resolve your request, whether the copy is in the U.S.A. or abroad.  As such, SOPA mandated that DNSSEC and any other protocol or application "designed to circumvent the block" would be illegal.  This is such a major security concern that NSA and Homeland Security veteran Stewart Baker said "[SOPA] is badly in need of a knockout punch."

Oh, right, and that's not to even think about how these servers - when they're working - will have to handle the task of filtering content.  Right now, a DNS Server receives your request (www.amazon.com) translates that request into the correct Internet address (some long string of digits, like 127.0.0.1), and returns that address to you, at which point your computer finds and connects to Amazon using the computer-readable address.  This all happens in milliseconds, and the system is able to translate millions of requests.  SOPA would have required that these DNS translator servers have another step added before they pull up the address: double checking the blacklist to make sure "amazon.com" isn't blocked.  Again, this would happen in milliseconds, but what is the effect when you consider the requests of millions of American Internet browsers.  We're not talking a tremendous slowdown here but imagine that every highway in the country has police checkpoints on the off-ramps.  That might cause a bit of traffic, don't you think?

DNSSEC wasn't the only proposed way to get around SOPA provisions.  There's also the classic proxy server or virtual private network.  You may have heard of this idea before in movies that have a hacker character.  When someone says "The signal is untraceable!  It goes halfway to Moscow and back," or something equally hyperbolic, they're talking about proxy servers.  A proxy server or VPN is basically the old bum outside the liquor store of the Internet.  Someone says you're too young to buy booze so you hand him the money and he buys it for you.  Sending a proxy is a great way to subvert the law, but it's also a great way to get around school and work firewalls to check Facebook, for anyone afraid of Big Brother to stay private on the Internet, or for whistleblowers to stay anonymous.  Or hey, maybe you're not sure about a site and you would prefer to check it out before you accept their scripts and give up information about your computer's IP address, browser, operating system, etc.  Because proxies could be used by infringers, they would've been illegal under SOPA, and that's throwing the baby out with the bath water.  Some of our government's greatest atrocities have been revealed thanks to proxied informants talking to WikiLeaks, and love or hate the site, you have to love the idea of a transparent government.  An informed population is tantamount to a successful democracy.


But here's the best part of all: SOPA wouldn't even've worked!  For all these terrible aberrations of free speech, privacy, personal security, due process, personal liberty, and economic sensibility, the law wouldn't actually stop pirates!  Like I said before, these types of blacklists work by making the DNS Servers drop your request for the proper, computer-readable IP address.  If you already know that address, you can route directly to it without ever telling the DNS Servers.  It's folly to think that pirates would have admitted defeat and not developed browser plugins and other tools that anyone could access.  Sure, the sites hosting these things would get blacklisted, but just like with Napster, then Kazaa, then Limewire, then BitTorrent, then MegaVideo, then Putlocker and all the other streaming video sites that are still up, the shell game will go on forever.  In fact, there was already a Firefox addon ready to go before the bills even hit the Congressional floors.  As Steve Jobs put it: "We don't believe it's possible to protect digital content [...] Pick one lock — open every door. It only takes one person to pick a lock. Worst case: Somebody just takes the analog outputs of their CD player and rerecords it — puts it on the Internet. You'll never stop that. So what you have to do is compete with it."

Without delving at length into the fallacy of the scorched earth approach to copyright protection: Everyone uses Hulu whenever they can.  The issue has never been that pirates want to bleed content creators dry, it's that they want to watch their shows on their computers, mobile phones, and laptops at their convenience and for a price they can afford.  Torrenting something risks malware, low quality, desynced audio, and all kinds of annoyances.  Do you think anyone prefers that method just to avoid a few targeted ads?  And how popular are pirate sites anyway?  The Pirate Bay clocks in at #76 on the Alexa rankings.  And then, when you look at the sites above it, you start to realize how little Internet traffic actually flies the Jolly Roger.  Is it worth obfusticating the technology that lets us use 75 highly popular sites just to "defend" artists from site number 76?

Image courtesy of The Pirate Bay

Or wait... artists?  Does this bill really protect artists?  Those stats we always hear about how much money the music industry has lost to piracy always seem to be unimaginably high, and that's because they are.  To get specific here: I don't like country music at all, so I'm not going to spend my erratic and quickly vanishing disposable income to check out your country music, though I might listen to a couple on YouTube for free or download an album if someone recommended it just to tell myself I'm open-minded.  I've seen some estimates from pro-copyright sites that suggested 0.1% of all pirates, when surveyed, said they would have otherwise purchased the game.  One tenth of one percent!  I mean, I doubt that number's totally accurate, but think logically: Would your iPod be loaded with all the music you have if you'd had to pay for it?  People who care about a band buy their music and go to their concerts.  People who don't don't.  You're not losing sales, people are sampling your content and then deciding it isn't worth paying your price for it while others who wouldn't've given you the time of day are turning into customers.  Either get comfortable with that or give them a better price.

So then, the actual loss is probably a lot smaller than we always hear, but it's still theft and needs to be stopped, right?  This would be true, except that we owe the rise of independent artists (indie music, movies, and games), to the extreme availability of media in the digital age.  At the end of the day, the small loss is evened out (or - I would suggest - becomes a net gain) by the exposure of lesser known artists.  Just think about some of the people who owe their writing, music, video, or video game careers to the Internet.  Would they have had any success without a bit of piracy or piracy-driven advertisement?  Justin Bieber wouldn't have.  He got his start performing other people's music on YouTube - a practice that can be blocked by the DMCA let alone SOPA - and now he's rich and famous.  The truth of the matter is that the only ones being hurt by piracy are the already-established artists - the Metallicas of the world.  Interestingly, though, all of these artists are still thriving, still making millions, and benefiting all the more from digital distribution platforms and cost-savings.  While they're only incurring minor losses, the truth is that just like records and cassette tapes, piracy has only increased the world's interest in music as a whole.  In light of how the Internet and piracy is actually improving the majority of creatives' lives, it would be ridiculous if it was a few established artists who turned the amps to 11 on copyright infringement.

In truth, it's not them at all that is pushing these laws through Congress.  Sure, some artists have spoken out against piracy, but they're in the minority, and they aren't the ones lobbying your representatives.  The perpetrators, you see, are the production companies and distributors.  They invest a lot of money into the development of media and don't take kindly to this newfangled Internet that enables us to buy and access media without a middleman.  They know that they've become obsolete - that we no longer need to go to Tower Records to buy a CD that they shipped and own all the intellectual property rights to.  If artists can release their vision to the world for the low price of a web site (or even free, as with YouTube, BandCamp, etc.), then how can the distributors justify taking a cut?  If the artist has all the leverage in the digital age, why would they hand over their commercial IP rights at all?  Distributors are the ones spreading the myth of the pirate epidemic because without a boogeyman to fight, no artist in their right mind would accept their terms.  Artists are constantly fighting with their production companies and distributors, but with this new technology, they have new options for self-publication and monetization.  Pay-What-You-Want, Donationware, and Subscriptions are just some of these newly-opened and wildly successful pathways.  Congress would realize this, but they only recently settled the question of whether the Internet is a big truck or a series of tubes.


SOPA wouldn't only have furthered the boogeyman philosophy of these distribution companies, but added a new reason for them to exist: legalese.  America invented the Internet and remains its backbone and main proponent, so passing a law like this would be a clear signal to the rest of the world that blacklists are the way to go.  Imagine a world where every country has a blacklist all with their own guidelines, and you must follow not just the rules of your home country but the rules of any country you hope to be viewed in.  How could any independent artist hope to navigate that murky climate?  He'd need a team of experienced IP lawyers just to write a tour blog or devlog, let alone all the other legal stuff he already needs to figure out.  It's hard enough to keep tabs on the laws of one country, so imagine hundreds of countries and trade zones!  Your choices would be either A: find a company to handle your publicity and promotion, or B: risk being censored in any number of locales with no idea how to appeal or ameliorate the situation.  In essence, this wasn't the Stop Online Piracy Act, but instead the Stop Independent Artists Act.  Would you vote for that?

It's truly a non-partisan issue.  Conservatives demand limited government, whilst liberals seek regulated industry.  Laws like SOPA exist only to expand the powers of both.  Whether you're Occupying Wall Street or Teapartying it up, voting Obama or Ron Paul, Republican or Democrat, your movement has largely been funded thanks to donations made through the Internet, and you should be fighting for it and for your right to open discourse, open information, and open connections.  We're the United States of America, not China, Iran, or North Korea.  We don't want to stifle the Internet, because the Internet is Liberty 2.0.  We may have won this round against SOPA, but PIPA isn't totally dead yet, and there are more bills just around the corner.  It's about time you had your voice heard.

I hate one-issue voters, but if this stuff keeps up, I'm about to become one.  Ron Paul 2012!

3 comments:

  1. I think you're a little bit too liberal with your assertion that a property owner has no responsibility for the actions done on his property. The road analogy works because government owns the roads, and of course, government cannot commit a crime. However, if you phrase it as a warehouse for example, clearly you may be responsible for things occurring therein depending on the exact circumstances.

    A big problem, as you touch on, is the ambiguity of the law and the simple fear of a shutdown which will lead to many sites never even coming into existence because of hosts and advertisers being afraid to commit to projects which could in some way be perceived as risky. It's similar to the broad effects of anti-trust law and the nebulous terms thrown around with that legislation.

    The entire idea of trying to combat piracy really misses the point. It's just a denial of technology now available. Companies need to react rather than remaining stagnant hoping for government force to protect them and their profits from natural competition. Music companies in particular go through the same song and dance every time a new mode of distribution appears on the market. Contrast this with how truly free industries react to changing technology. There can't be a stauncher difference. SOPA essentially represents a bailout for IP dominated companies coupled with the ability to destroy dissent that politicians naturally latch onto.

    Also, I think you have the general idea of the Megaupload shutdown wrong. Yes you could say it demonstrates that SOPA is not required to control piracy. I think it instead shows that the government fully well plans on enforcing SOPA provisions regardless of the bill's passage. Feeler actions were being taken before the passage of the NDAA to test public reaction. They essentially decide a necessary course of action, start the process, then worry about creating the necessary legislative justification. I don't think the public outroar over SOPA was correctly predicted. You'll see some scrambling from people trying to counteract this, but I do not think you will see the government actually restraining its actions on this front. It may not be as overt as if the bill passed, but it will still be done. All actions even with the bill passed would have been as covert as possible with prosecutors realizing how draconian and clearly pro-business the policy actually is.

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  2. http://lewrockwell.com/paul/paul792.html

    Ron Paul weighs in on the issue eloquently.

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  3. Despite the absurd length of this post, I apparently missed an important point about SOPA: That it further demonstrates how seriously - or rather, how not seriously - our politicans take their jobs. Extra Credits does an excellent job of illustrating this ( http://penny-arcade.com/patv/episode/sopa-pipa ). tl;dw - basically, the whole point of having representatives is because there are so many policy issues that a pure democracy would never work. The only way to effectively govern AND represent the people is to hire people whose explicit job it is to investigate policy and consider their ramifications. The talks on SOPA\PIPA (like the ones shown in the daily show clip) make it obvious that these people aren't doing their job.

    As for the MegaUpload thing: that's actually part of my point. As per my previous DMCA post, IP companies already have too much power on this front. The newer models may not be as lucrative as in days past, but clinging to the edifices of the days when "People had to buy all their music!" (no they didn't) is completely stupid, and the distributors are trampling our liberties as they march to defend their outdated practices.

    With this post, I was just hoping to demonstrate exactly how bad SOPA was to hopefully stir some sustained interest in the topic. The way things played out, the general public probably thinks, "Well, if there's another one, we'll just beat that too!" In reality, there will be a hundred more bills just as devious as SOPA, and eventually they'll pass unless we take a firm stance and take our current politicians to task for this.

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