On January 18, 2012, major internet sites went dark to express their opposition to parallel bills in the House and Senate, the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PIPA), whose purposes are to curb online piracy, particularly materials offered on foreign websites, beyond U.S. jurisdiction. Of course, no law-abiding citizen, organization, or other legal entity condones online piracy of intellectual property, but these bills are fatally flawed. They are overly broad and not sufficiently tailored to achieve their stated purposes without significantly damaging legitimate sites and the Internet as we know it. As written, an allegation that a site contains any infringing material, no matter how invalid or trivial, or that a site merely links to a another site with allegedly infringing material is enough to shut down access to the original,otherwise legitimate, site. Anyone with little more than a passing familiarity with copyright law understands that, under our Copyright Act and 300 years of copyright law, not every use of a copyrighted work requires permission. One could stand on the floor of the Senate tomorrow and present any number of scenarios depicting copyrighted material online lawfully pursuant to a Section 107 fair use defense. Because a fair use determination is hardly black and white, were our Senators asked to vote whether or not the depicted scenarios constituted fair use or not, the results would be far from unanimous. Without fair use, copyright's goal to promote the progress of science and the useful arts would never be realized.
Is the overly-broad, overreaching and unilateral decision-making (sometimes referred to as censorship) language of these bills really the limit of the authorship talents of the U.S. Congress or is it intentional? These are pretty much the choices:
1.There is an inability to craft a finely tuned piece of legislation to achieve arguably laudable goals or
2. The language was intended as written, but evidenced a lack of vision to foresee the enormous potential for abuse and crippling of the most entrepreneurial, equalizing, educational, productive information and communication network ever conceived to date.
Very discouraging. This, despite best efforts to educate Congress as to the extent and nature of the critical damage enabled by these bills. As usual, money talks. Loudly. "According to Congressional money watchdog Maplight.org, industries supporting SOPA have funneled more than $92 million to members of Congress since July 2009 -- or 13 times as much as those who oppose it." [source: Info World: "This Internet blackout has been brought to you by the U.S. Congress"] Since Congress appeared deaf or disbelieving and was proceeding with the legislation, major Internet sites were left with little choice but to demonstrate what could happen if this legislation passed and so, voluntarily blacked out their sites yesterday. Hardly a "stunt to punish their users or turn them into their corporate pawns", as characterized in a statement by the MPAA Chairman, Chris Dodd (winner of "the pot calling the kettle black" award for characterizing the blackout sites as "intentionally skewing the facts to incite their users" and engaging in "hyperbole and PR stunts" after their legendary leader's very public statements in the past that "the vcr is to the American film producer as the Boston Strangler is to the woman alone", [sourced Testimony to the U.S. House of Representatives (1982), Jack Valenti]), but rather a hope that a picture is indeed worth a thousand words.
Today (1/20/2012) it has been announced that the rapidly approaching January 24th Senate vote on PIPA has been delayed. It would appear, fortunately, that votes (sometimes referred to as the will of the people...) count as well. As reported by PC World in "Were SOPA/PIPA Protests a Success? The Results Are In" :
Four and a half million people,on one site on one day, signed a petition opposing the bills, 162 million people saw the protest on Wikipedia, and 8 million people used Wikipedia's search tool to look up the contact information for their representatives. Furthermore, Tumblr "censored" its users' content streams, and reported that its users averaged 3.6 calls per second to Congress through the company's Web site--nearly 90,000 total.
That's good news. Here's hoping that Congress can come up with a piece of legislation that puts out the forest fires without eliminating the entire forest.
Peggy E. Hoon, J.D.
2011-2013 CIP Intellectual Property Scholar