Taking the Internet Down, Privately

I've not kept writing about PROTECT IP and SOPA as much as I might have, both because I see the concerns being widely discussed as SOPA has come to the fore, and because I came to understand that many have been following the threat for some time, extending back to efforts in prior Congresses to effect the same shackling of the open internet.

4394502901_e22c3f6d47_zBut I do want to revisit my particular point of emphasis, which is, the proposed legislation would cut courts and governments out of policing the internet for copyright infringement.

Instead, the internet would be policed by private, corporate vigilantes who would not answer to courts or to governments. In effect, SOPA and PROTECT IP represent a bold, key step in privatizing the internet, turning an otherwise media-rich web into a kind of cable television.

This point is different from the point that SOPA and PROTECT IP will align the US with China, Iran and other poltically repressive regimes on internet censorship methods. Most of the critiques I see talk about how bad it is for the government to have this kind of power.

But I think big media companies would leapfrog government altogether, leveraging the vigilante safe harbor in the legislation.

Here's a screenshot of that vigilante safe harbor:

Screen shot 2011-12-04 at 12.23.14 PM

The cross-references to Sections 102(c)(2), 103(b), and 103(d)(2) amplify what private parties can do, if they have (1) a "reasonable belief" that a site is infringing, and (2) the right boilerplate in their terms of service (easy enough; more on that below):

  • a search engine may remove from its search results any hypertext links to an offending site
  • a service provider may prevent a domain name from resolving to its IP address
  • a bank may refuse to process payments from US customers
  • an ad agency may cease paying the site

Think of Section 104 as a free pass shared among Hollywood, banks, advertisers and large ISPs to take down offensive sites, without a government order (Section 102 of SOPA) and without even a notice from an aggrieved copyright holder (Section 103 of SOPA).

Unqualified, private immunity makes a poor policy worse, by effectively gutting any semblance of process. At least under section 103, an agreed copyrightholder holder must first certify under penalty of perjury that it believes its rights have been violated. But why would a rights holder take that step if it could collude with other big media interests to take action in reliance on Section 104?

Section 104 is a means to give the (White House sanctioned) private agreement among Hollywood and ISPs the effective force of law.

As for the condition that the corporation should have a provision in its terms of service permitting it to access Section 104 immunity - it might be drafted as follows:

"Provider reserves the right and discretion to degrade, block or terminate service, without notice, to any customer it believes, in its sole and absolute discretion, may be engaged in acts that support or countenance the theft of US property, or other behavior contemplated by the Stop Online Privacy Act of 2012."

Because, in United States, terms of service can be changed unilaterally by the service provider, I would expect every large corporate service provider to include a clause like that in its terms of service.

Bigger picture, I'm coming to appreciate that SOPA and PROTECT IP are part and parcel of the co-opting of the federal government by private corporate interests. Part of a relentless and increasingly shameless attack on meritocracy, an attack on America's future, all so that legislators can fund their re-elections.

Image by DonkeyHotey. Former Senator Christopher Dodd is now the Chairman and CEO of the Motion Picture Association of America (MPAA). According the the MPAA website, "The major motion picture studios consistently produce and distribute the most sought after and enjoyable entertainment on earth and protecting this great American export during a challenging economy and an ever-changing technological landscape is Senator Dodd’s highest priority."

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