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SOPA and PROTECT-IP: A Line-By-Line Analysis of the Bills We Must Kill

Unconscionable power grabs. Call your congressmen with this.

by
Bill Reader

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January 14, 2012 - 12:47 am

That is not my greatest concern with this section, however. I simply wanted the context to be clear before bringing it up. Back in the definitions under which these rules are operating is the definition of a site against which actions should be taken. In the first section, it was a “foreign infringing site.” Here, actions are taken if an “internet site is dedicated to theft of U.S. property.” Since this regards private copyrights, you may already be asking where exactly the U.S. gets off calling them U.S. property. The answer, I suspect, is that we are living in the era of “tax expenditures,” and politicians have now transferred to openly discussing our money and property as though it belonged to them.

We’ll leave aside this disturbing philosophical stance for the moment, though. There are two conditions under which a site qualifies as being “dedicated to theft of U.S. property.” One is that it must be U.S. directed, which, as I mentioned at the beginning, includes not just foreign sites but most domestic sites. The other is a choice of two conditions. One possibility is that it appears to be made specifically for the purpose of breaking certain laws — dealing generally with copyrights owned by the actual U.S. government (the only law that has any business being in this section), circumventing copy protection, and counterfeiting. The other possibility? Here I’m going to pull out a blockquote, because it has to be seen to be believed:

(I) is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation of section 501 or 1201 of title 17, United States Code.

Sections 501 and 1201 are the first two laws I mentioned previously. Feel free to look at page 26, line 3 if you think I made that quote up. And in case the problems with the statement aren’t immediately clear, I’d like to do a few thought experiments with that sentence.

First, what constitutes “deliberate actions”? If it never occurred to me that the U.S. copyright holders would consider my site as violating these laws, and I decide not to notify them on that basis, it’s arguably a deliberate action. Second, note that avoiding “confirming a high probability” of your site being used for illegal activities means, under this bill, that you are stealing. Whether the site actually is used for those purposes is immaterial, evidently.

What if I do not believe my site is used for illegal activities? Or I believe it could be used for illegal activities, but the probability of it happening is low? Answer: according to this section, I am automatically considered to be stealing. You don’t need to be a lawyer to see an obvious catch-22. This section happens to restrict suits to copyright holders, but it’s a small consolation when crony capitalism is rife: if the government wanted to exploit this power, it certainly could.

In the interest of completeness, I’ll note that promoting the use of the site for illegal activities is listed as an alternative way to fulfill the second part of that biconditional.

Now, the punch is pulled slightly on page 30, since this section actually requires identification of the specific way in which the website’s activities will result in irreparable loss or damage to copyright holders. Don’t put down your pitchforks and torches yet, however. Bear in mind that this in no way settles whether this will allow people to make claims that if an infringement were occurring, they would be losing revenue. This section is still dangerous, any way you slice it.

I should mention, since someone is sure to, that this section also contains a process for counter-notifying in order to limit the injunctive effects prior noted. I have two comments on that. One: how very generous of them to institute punishment first, then appeal. Two: the way the bill is written, it’s a devil’s bargain. You’ve got to consent to U.S. jurisdiction, to begin with. You also need to hand over quite a bit of personal information to the U.S. government. In the end, you’re throwing yourself at the mercy of the U.S. government and legal system, which might sound like a bargain in Sharia-laden England, but is still a risky move. I strongly suspect, and I think the writers of the bill likewise feel, that a website owner is more likely to just abandon the U.S. market.

There is also some extended discussion of procedures if a counter-notification was found to be in error, as well as a section on procedures for dropping or modifying the suit that are similar to sections of the same kind early in the first title. For the sake of brevity, having seen nothing of any particular interest as I read them, I have skipped them here.

The next section deals with immunity from suit being provided for companies that take action against foreign infringing sites or sites that steal “U.S. property.” Actually, this section gives very broad powers to any company that chooses to go vigilante on Uncle Sam’s behalf. As prior mentioned, this type of relationship is worrisome. We’ve seen the U.S. government use influence on specific companies in order to get certain results before — that sort of dealmaking is why certain companies are specifically excepted in Obamacare. Crony capitalism could just as well be leveraged here, with the U.S. government leaning on companies to “voluntarily” cut access to foreign companies in return for benefits, and the U.S. government covering for them when questions are raised as to why. It’s just one more way that this bill could lead to censorship.

Title One is rounded out by some porky provisions against sites involved in misbranding or counterfeiting of prescription medication. What this is doing in a piracy bill eludes me. It’s clearly substantially different from copyright infringement, which is the major focus of the bill. If a site is distributing counterfeit prescription medication with a misappropriated brand name, I feel that only a government bureaucrat would focus on the latter aspect.

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