KOMPAS.com - The battle over proposed anti-piracy bills in the US is not just about Hollywood versus the internet, it is a fight between the past and the future. It also throws up a real danger that the laws could become an easy way to silence critics.
Internet sites such as Wikipedia, the user-built online encyclopaedia, yesterday "blacked-out" in protest against the two bills going through the US Congress.The websites hope to draw public attention to the draconian provisions of the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA).
Internet experts say the laws would allow owners of copyrights or trademarks to shut down US websites; block foreign websites or freeze online banking accounts without judicial order. Infringers would be liable to massive new penalties and criminalisation of harmless activities such as uploading video clips of members of a family singing copyrighted songs.
The two bills have been sponsored by members of the US Congress with close ties to Hollywood and are actively supported by the Recording Industry Association of America and the Motion Picture Association of America, and copyright, trademark and patent ("IP") owners such as News Corp, TimeWarner, Walmart, Nike, Tiffany, Chanel, Rolex, Sony, Ralph Lauren, Comcast, ABC (US) and Dow Chemical. The companies behind the Visa and Mastercard credit cards also support the bills, despite risks of revenue loss, as reducing the risks to credit card and other online payment companies from targeted litigation by IP owners.
Opposing the bills are a range of internet companies and human rights groups including Google, Yahoo, Wikipedia, Craigslist, Facebook, Twitter, LinkedIn, eBay, AOL, Mozilla, Reddit, Tumblr, Etsy, Zynga, EFF, ACLU, Human Rights Watch and (in Australia) Electronic Frontiers Australia. Many artists, including musicians Peter Gabriel and 50 cent and actor Ashton Kutcher, also oppose the bill.
The bills have a large number of draconian provisions — some of which will not make it to a vote — but among the concerns are that the US government can shut down a domestic or foreign website on the basis of any unsworn complaint without a court order; that the bills conceive of Internet Service Providers (ISPs) being required to block access to foreign websites and the confiscation of domestic and foreign website names registered in the US. Like criminals, websites under complaint would have bank accounts and other assets seized, but in order to protest in court, foreign nationals must consent to accept the jurisdiction of the US.
The bills have been criticised as over-reach by the major brands and IP owners, often pursuing a definition of "infringement" that is much more severe than the law. Already for example, Universal Music has tried to censor an anti-SOPA song on YouTube because several of its signed artists have donated their time and talents to the protest video. A cable company, Monster Cable, claims sites like eBay and Craigslist "infringe" on its IP rights because second-hand cabling can be bought on those sites.
The entrenched interests that back the bills don't care that Google, Facebook and many other content-driven internet websites can't work in a legal environment where IP rights trump every other consideration, or that news and comment will be silenced whenever an IP owner complains. It's a cunning way to shut down critics – just allege trademark infringement and the critical comments go away.
Why is it that the IP owners can't devise a new business model – monthly access or easier digital purchasing – rather than asking the government to ramp up laws criminalising anything that upsets their 20th century market arrangements? IP owners have a long and disreputable history of over-reaction to technological developments – claiming in turn that player-piano music, radio, TV, cable TV, cassette tapes, video cassettes and now the internet will destroy the creative industries. It's history now that those claims were false, and the entertainment industries inevitably prosper in a new and larger market.
EFA understands that commercial interests deserve protection online, and in no way advocates criminal breaches of the many IP laws. However, the public interest includes the right to comment about brands, to criticise products by name, to review and snip "fair use" excerpts from copyrighted material and to offer second-hand goods for sale.
The bills also contain provisions that the US government could direct ISPs to block user access to seized domains — using the internet's underlying addressing Domain Name System, which translates numeric internet addresses into names we recognise such as Google.com. ISPs would be required to put in blocks against their users accessing websites under complaint. But this carries risks in that a clumsy blocking by an individual ISP can misdirect internet users opening up the users to exploitation by cyber criminals.
The last word should go to a Twitter user Sam Schillace – "Under SOPA, you could get five years for uploading a Michael Jackson song, one year more than the doctor who killed him."
Kimberley Heitman is a barrister and solicitor who lectures on internet regulation, e-commerce and risk management. He is also secretary of Electronic Frontiers Australia Inc.