SOPA’s potentially chilling effect on public debate
SOPA (Stop Online Piracy Act) is getting blasted all over the Internet. Even so, one of its major dangers has not yet been widely discussed. People seem to realize that SOPA can create censorship by governments, or businesses, or as collateral damage when governments and businesses pursue other interests. But they may not yet grasp that SOPA can allow individuals to stifle free speech as well.
To quote the owner of a popular sports fan discussion forum (emphasis mine):
The problem is several of the provisions in SOPA will force ISPs hosting websites (ie: the company that hosts our servers) to potentially disconnect us from the Internet if there’s a claim – unsubstantiated or not – that we’re infringing against copyright, regardless of if it has not been fully proved in court. The argument is that this would make it easy for someone to make false or weak claims against the site to take a us offline until we went to court.
That’s a headache I’m not prepared to deal with. The number of threats I get each year via e-mail from angry members from other teams we remove are pretty unreal and obviously you guys don’t see them, so giving any additional ammunition backed up by a law like this would be a potentially huge issue. I’ve been talking with other sites and it’s a very real concern that we’re all potentially going to be faced with if this goes through, unless it’s rewritten to better target the sites that are really the ones they’re looking to address.
And that’s just from the passions of sports fandom. The passions of the politics — or the commercial interests of those being criticized — are of even greater concern.
Indeed, SOPA-like legislation creates an easy way to take down any forum, blog, or other site that allows user-generated content: flood it with copyrighted content, then run to the regulators. We must never, ever, ever accept a legal regime in which publishers may be censored before they are PROVED to be guilty of wrongdoing.
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2 Responses to “SOPA’s potentially chilling effect on public debate”
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The problem here is the word “PROVED”.
In other areas of intellectual property, i.e., patents, if you think someone is infringing your patent then you have to go to a judge and present sufficient evidence to get an injunction issued forcing the allegedly infringing party to stop practicing your patent or license it from you. The standard for these injunctions is very high, i.e., one party usually can’t do it. The judge will want the alleged infringer’s arguments for why they believe they are not infringing, and will weigh them before issuing an injunction.
This is not the same as requiring “proof” in a court of law, but it is a reasonable standard based on real evidence.
I would not be opposed to something analogous to the above for copyrighted materials on the Internet. I have not read SOPA in detail so I don’t know the degree of burden of proof it requires. People talk as if an unsubstantiated accusation is all that is required to shut someone down, and I very much doubt that would ever be implemented anywhere. (If that’s in fact in SOPA, then it truly is brain-dead. But I suspect it is not.)
In between unsubstantiated claim, versus “proven”, there really is a spectrum. These are all different points on the spectrum from unsubstantiated to proven from least burden of proof, to greatest burden of proof:
unsubstantiated claim,
evidence from one party must be filed with some agency.
evidence from one party will be examined by some authority/inspector
evidence from one party will be weighed by a judge,
both parties are invited to present evidence, but if only one party presents any, that is still weighed by a judge,
evidence from both parties is required and will be weighed by a judge
decision of a jury
admission of infringement
The right thing for IP/Copyright infringement is something like 4, maybe 5. If that’s where SOPA is, I would not be opposed. If it’s down at 1 or 2, then it’s a disaster.
I don’t think any one-sided procedure should be sufficient to justify censorship.
I agree that the true bad guys would rarely participate in such a procedure, so it has to be OK to rule if they don’t show up.
I like Ars Technica’s idea of focusing on the flow of funds rather than actual censorship. Wrongfully depriving somebody of money is less of a horror than wrongfully gagging them.