A lot of people all across the Internet have been up in arms about the pernicious Stop Online Piracy Act (SOPA) and its companion Protect IP Act (PIPA) bills working their ways through Congress—and with good reason. But as a web site operator, even of a dinky little blog like this one, these bills stand to effect me quite directly. I thought I would share with you what changes will probably have to happen across the Internet, and specifically at Off on a Tangent (and in my life) if these bills pass in their current forms.
Today, sites based primarily on user-generated content (e.g., YouTube) are protected by the ‘safe harbor’ provisions of the Digital Millennium Copyright Act (DMCA). Under these provisions, upon a report of infringing material the company must review and remove the content. The company itself, however, is immune from prosecution or punishment for the infringement of its users. SOPA/PIPA would override these protections, making YouTube liable for an infringing video uploaded by its users. To continue operating as it does today, YouTube would need to review every uploaded video (at great cost), move out of the U.S. (at great cost), or constantly risk being taken down entirely because of individual infringing videos. Facebook, Flickr, Picasa, Vimeo, and countless others would face a similar conundrum.
Internet hosting companies and cloud service providers faced with the specter of constant lawsuits, shutdowns, and harassment in the U.S. are likely to leave the country. The Save Hosting Coalition, an alliance of Internet hosting providers, says that if PIPA passes, “We risk an environment where the bar within the United States is re-set so that only extremely large companies can afford to be web hosting providers. And what few hosting providers remain if the Protect IP Act passes will see less U.S. based content to host as we risk all independent content moving overseas.”
In the proposed age of SOPA/PIPA, free speech on the Internet becomes a downright risky thing. Certain topics like DRM technology will go off-limits entirely (since aiding the circumvention of DRM, even for perfectly legal reasons, will become a felony offense). Some foreign-hosted web sites that can’t be brought down entirely will be ordered blocked in the United States—a disturbing parallel to the restricted Internet access in the People’s Republic of China. The technical integrity of the Internet—namely the DNS system and the upcoming implementation of DNSSEC—will have been broken, and with it the civil integrity of the Internet as an unfettered means of communication. The chilling effect these bills will have on Internet free speech terrifies me. And despite all of this madness and collateral damage, the law is unlikely to even have the intended effect of stopping online piracy.
Because I make no money to speak of from this site, nor do I have the funds in reserve to fight off lawsuits and property seizures, I have few options compared to the big names like Google and Facebook. If one media company makes a baseless accusation of ‘infringement’ against this site, no matter how spurious, it could easily pull me off the Internet and cost me thousands and thousands of dollars in legal costs to get everything back up and running. I could potentially move my sites to overseas hosting providers, but even then my audience is almost entirely American . . . and SOPA/PIPA would require U.S. Internet companies to block access to infringing sites, even if they’re hosted on foreign servers.
So, if these bills pass, I’ll have to take a number of steps here on Off on a Tangent to minimize the likelihood of my ever being accused of infringement or being a ‘rogue site,’ and I’ll also be forced to be prepared to handle a shutdown anyway no matter how many precautions I take. Our legal system is supposed to be predicated on ‘innocent until proven guilty’ and ‘due process,’ but these antiquated notions will no longer have a place here. To run a web site in a post-SOPA/PIPA world, we will need to be constantly limiting our liability, clamping down on anything that could even be remotely construed as infringement, and constantly prepared to fight unwarranted shut downs anyway since they could come at any time and for any reason.
Here are some of the precautionary measures I’m considering if SOPA/PIPA passes; these may change depending on the final language of the law. Of course, our best hope at this point is that the darn thing dies and never becomes law.
No more un-moderated discussion. Because the government will have the authority to shut down Off on a Tangent at the mere accusation that there is infringing content on the site, I will be required to monitor content on the site much, much closer. I’ll have to review each individual comment and ensure that there is nothing in it that could, by any stretch of the imagination, be considered misappropriation of copyright. Even if I believe something is likely covered by longstanding ‘fair use’ provisions, I’ll still have to prevent publication to be safe. SOPA/PIPA reverses the burden of proof; the accuser will not need to prove that my site is infringing before it can be shut down. If this moderation process becomes too onerous, I’ll simply disable comments all together.
No more links to uncensored reference and entertainment sites. I kid you not. Under SOPA/PIPA, even linking to sites that are accused of violating copyrights is considered infringement. As such, sites like Wikipedia—that have tons of copyrighted material on them, usually under fair use provisions—are likely to be periodically shut down and branded as pirates. Since linking to ‘infringing’ sites will now be considered infringement itself, I’ll have to play it safe and avoid linking to any site that might be targeted—Wikipedia and YouTube being two prominent examples.
No more externally-produced illustrative images, even when they are ‘fair use’ or public domain. To reduce my risk of being accused of infringing on copyrights, I’ll stop using any images or graphics I haven’t produced myself. Under copyright law’s longstanding fair use provisions, I’m permitted to use copyrighted images for certain illustrative purposes. There are also no restrictions on the use of images in the public domain. But because laws on these matters vary from country to country, and the mere accusation of infringement is enough to get a site shut down, even using images that are legally ‘in the clear’ becomes risky.
No more quotes from published works. Quoting from a book or article has always been protected under copyright’s ‘fair use’ provisions, at least within certain limits. But with the burden of proof reversed and the mere accusation of infringement now posing a legal risk, I simply can’t take the chance. Even a single sentence raising the ire of a publisher could land me in legal hot water. I may need to remove the quotes widget and quotes section all together, and refrain from quoting from a book when I review it.
Restricted access to DRM removal tools. I make a point of removing DRM ‘protection’ from digital files that I purchase online—whether they be music, books, movies, etc.—so that I retain unfettered personal access to the copyrighted material that I have legally purchased. My right to do this is protected under longstanding ‘fair use’ provisions, and the interoperability clause of the DMCA (1201(f)(3)). But I won’t be able to link to these tools, since SOPA/PIPA makes linking to anti-DRM tools a felony offense, and there’s a good chance that SOPA/PIPA will require U.S. search engines and ISP’s to block access entirely to their download sites. To get the tools to access my own purchased content the way I want, I’ll need to bounce through foreign proxies and DNS services. I’ll be prohibited from any in-depth discussion of DRM removal on this site, and could go to prison merely for linking to anti-DRM tools. This also raises issues with sites like Wikipedia, which refer to the technical details of various DRM schemes.
Legal and/or liability insurance. Because SOPA/PIPA effectively reverses the burden of proof, my site could go down and then I’d have to fight it in the courts to get it reinstated by proving that I didn’t break any laws. So much for due process. Google has a legal team ready to handle these situations at a moment’s notice, but I don’t. To ensure I’m not bankrupted by fighting a company’s spurious claim that I violated their copyrights, this law will force me to obtain legal and/or liability insurance (or risk a permanent shutdown of my site at any given time for any given reason). Conservatively speaking, I expect that this will more than double the annual operation costs of this web site.
Redundant systems and domain costs. In order to ensure continued operation of the site in the event of a seizure or takedown, I would need to considering having a whole duplicate site stack ready to go—foreign hosted with a foreign domain name to minimize interference, though even still it could be blocked through the new SOPA/PIPA ‘Great Firewall of America.’ If I decide this is a necessary step based on the final disposition of the bill and breadth of its enforcement, it would end up—combined with the insurance step above—tripling the annual operation costs of this web site . . . or worse.
Time and effort. I’ll have to do a full audit of the site if these bills pass, finding any place I used public domain or ‘fair use’ images, sounds, quotes, and more . . . and remove them to minimize the likelihood of my being targeted. I have no idea how long that will take, and I’m not looking forward to it. I may need to take the site offline, in part or in whole, while I perform the review, depending on how much time I have between the bills’ passage and implementation.
And between the time commitment, increased costs, and legal hassles I wouldn’t blame your average blogger for throwing in the towel altogether.
And of course, there’s no telling if any of this will do any good. There’s little question that domain seizure authority will be mis-used, as it has been already even though the government doesn’t even technically have the authority today. There’s little question that, once we have a government seizing domains and blocking web sites with no due process as part of the law of the land, that government will start to broaden its list of reasons why a domain might be seized. Today it’s a tenuous claim of copyright infringement, but then it’s a claim of ‘hate’ speech, then ‘offensive’ speech, then it’s ‘unpatriotic’ speech, and eventually it’s whatever speech the powers-that-be don’t want you to hear. Where do we draw the line? How much authority over the Internet do we really think it’s appropriate for the government to have?
So please tell your members of Congress to vote this thing down. It is a clear violation of our 1st and Fourth Amendment civil liberties, and our elected representatives are sworn to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” Tell them to uphold their oath. Tell them to keep their promise. Tell them that you don’t want them to break the Internet, chill free speech, or criminalize access to your purchased content. It’s not too late, but soon it might be.
The views expressed in this post are mine and mine alone. They do not necessarily reflect the views of my employer, Web.com.