Is SOPA really that bad?

Uproar about concerns regarding censorship and lack of due process not justified

Friday, January 27, Mark Gibbs published an article discussing "the real reasons why SOPA and PIPA are real bad" (http://www.networkworld.com/columnists/2012/012712-backspin.html).

Mark points out what he sees as two major issues:

• The legislation enables censorship, which will interfere with free speech
• There is a lack of due process; copyright people can shut down anyone they want to

Let's start out with remembering that there actually is no definitive "SOPA Act" - since nothing was ever passed (and now may not be), and what was under discussion was under negotiation and in flux.

Preventing Piracy

First let's examine whether there is a piracy problem. Some SOPA critics claim that piracy 'just isn't that bad and hasn't had a strong enough impact to warrant taking any chances with how the Internet is run.' This is not the case.

Let's look at the music industry, without a doubt the most seriously hit industry from piracy to date (at least in percentage terms). The best scientific estimates for the music industry is that they have lost over $150 billion due to piracy (actually almost $200 billion from 2000-2010). This is a decline of about 60%. For further information, see http://ssrn.com/abstract=1932518.

There is some indication that piracy losses in software are as big as or bigger than music. A disclaimer here is there are no serious independent studies of this, just industry prognostications by the Business Software Alliance (BSA). In 2010, the BSA estimated $51 billion annually in software piracy for 2008 and 2009.

Careful independent studies indicate that movies have lost some significant amount of revenues, but those studies don't provide the overall amount of harm. The MPAA claims that $20 billion is lost annually in the United States although it is hard to tell how realistic this is.

So there really is a problem with piracy. Is there really a problem with SOPA?

Censorship

We also should recall what this legislation was attempting to address. The sites in question have illegally copied (copyrighted) items.

The claims against SOPA that sound the most heinous are the censorship claims. However, these are wildly misleading, as there is no way that shutting down a website that is trying to sell illegally copied items would interfere with anyone's free speech. Censorship occurs when you shut down sites because of something they are saying - which is not what SOPA is about. Free speech means you can say what you want, not that you can steal some else's intellectual property! Unless you define piracy as "speech," these bills do not affect free speech in any way. Some critics claim that SOPA might allow someone to shut down someone's speech by knowingly and falsely claiming that the site engages in pirated materials. But this is no different than saying that someone can shut down someone else's speech by claiming that the speech maker committed a crime, such as murder. This is a risible concern, as law enforcement authorities are not likely to believe a wild claim lacking any evidence in either instance.

Lack of Due Process

Mark states that it is wrong to let the accusers be judges and juries, that one is innocent until proven guilty, not guilty until proven innocent.

Normally, even though one is assumed innocent until proven guilty, once there is an indictment (from the courts) the accused may be kept in jail (if bail cannot be made) before there is a trial and verdict. It is the same thing with SOPA. The complainant cannot just shut down a site without going through a process using the courts.

Should SOPA shut down a site, the site that is shut down is allowed to counter complain and argue that they should not be shut down; the costs are not any different in nature than the costs of someone wrongly accused of a crime or civil manner until a final decision is made. Would SOPA critics accept the process if the winner were paid court costs by the loser? I doubt it.

Temporary injunctions take place in our court system to shut down what is thought to be illegal activities prior to a full trial; this essentially is what SOPA was going to do. In addition, it would require reasonably strong evidence to shut down a site in the first place. There have been claims that this would be frivolous and subject to all sorts of false claims, but it wouldn't be different than any other type of court proceeding.

Let's look at what would happen if a site could never be shut down until there was a trial. Since SOPA focuses on foreign sites, they might remain untouchable since U.S. courts might not have jurisdiction. Ignoring this aspect, there are serious problems with waiting for a full-blown trial, which often takes several years (the LimeWire and Grokster cases both took several years and LimeWire settled). Napster, on the other hand, was shut down in a matter of months by a preliminary injunction. The point here is if every one of these cases first must go to trial, the sites will continue pirating for several years without being shut down. Remember that one can put up one of these sites pretty quickly; if the copyright owners are unable to do something fairly quickly they will never have a chance to reduce piracy.

If IT Pros thought about piracy the same way they think about viruses, they would understand why the content owners want to stop it so badly.

• Security
• anti-piracy
• censorship
• due process
• intellectual property
• SOPA