Which Is Worse, SOPA Or PIPA? Answer: Both!
from the a-disaster-all-around dept
The PROTECT IP (PIPA) bill was introduced in the Senate last May. Over the summer, opposition to it continued to grow — well respected venture capitalists, top legal scholars and entrepreneurs all came out against the bill. Even the NY Times and LA Times both ran editorials against PIPA.
Then, in October, SOPA was introduced in the House, and it was much worse than PIPA, leading to much greater public outcry, as the momentum against this kind of bill grew. This resulted in a “manager’s amendment” to SOPA, which makes it more like PIPA.
Not surprisingly, the Senate is poised to try to move forward with PIPA as soon as possible (January 24th). The folks behind this bill have done all of this quite strategically. They knew that there was growing opposition to PIPA, and while an original version of SOPA, by Rep. Bob Goodlatte, was going to try to fix some of the problems with the bill, Rep. Lamar Smith was pressured to take control over the bill (which he did) and made it much, much worse. The thinking here among the lobbyists was that if he made it much worse, and then backed down to PIPA-levels, that already dreadful bill would be seen as a “compromise.”
And, it appears that some in the press are really falling for it. The Washington Post recently ran an editorial claiming that PIPA was a “better thought-out and more prudent approach.” That’s simply not true. It’s a different approach, but it’s neither better thought out, nor prudent.
Sherwin Siy has an excellent blog post in which he discusses which bill is worse by noting that the answer is basically both of them. Both bills are bad and both bills have problems. Some of the problems overlap… and some don’t. But both are scary bills:
Is PIPA worse?
PIPA features a particularly expansive definition of what constitutes a “site dedicated to infringing activities,” which can include merely “enabling or facilitating” infringement. How broad this is is uncertain?is merely providing hosting to an infringer enabling infringement? What about indexing links to an infringing site? This is the sort of language that can easily reach too far?we’ve seen lawsuits and premised on some pretty thin ice so far.
Another huge hole in PIPA is that it allows court orders to issue against any “information location tools” as defined in the DMCA. That sounds a lot like the search engine-directed provisions in SOPA, but the DMCA defines “information location tools” very broadly?to the point where it could easily encompass a simple link. This could subject nearly the whole web to court orders issued through PIPA.
Is SOPA worse?
Even after the manager’s amendment, SOPA retains a lot of excesses, pulling in a lot of other types of issues into one big bill?like also including the complexities of trade secret violations, and expanding criminal penalties for streaming (which certainly seemed to upset Justin Bieber, at least).
It also grants blanket immunity to a much wider range of entities who voluntarily decide to cut of suspected infringers. While PIPA restricts immunity to ad networks and payment processors, SOPA adds to this list any ISP, registry, registrar, search engine, bank, or even any advertiser. This puts a large number of potentially powerful intermediaries in an even more powerful position. If Comcast decides it’s tired of, say, YouTube.ca taking bandwidth and audience away from cable programming, it can argue that YouTube is “dedicated to infringing activities” and not face any consequences under net neutrality or competition laws. If Google gets upset that eBay.co.uk isn’t playing ball with Google Shopping and decides to delist it, it’s got a plausible way to escape any lawsuits (to say nothing of unwanted attention from the FTC or the DoJ) for acting anticompetitively.
So to ask whether SOPA is better than PIPA, or vice versa, is a question without a clear answer?a comparison of rotten apples to rotten oranges. They’re different enough to defy an up-or-down value comparison, though at base they are similar enough, and similarly bad.
The fact is that both bills are effectively the same thing, with differences at the margin, neither of which is good. Congress and some lobbyists bet the farm on the idea that starting off with a worse bill would allow a bogus “compromise” allowing them to get what they wanted. What I don’t think they expected is just how much these bills would get attention and wake up internet users. For now, the strategy by Lamar Smith is to pretend that this opposition isn’t real. There’s about a month or so left to prove to him that he’s wrong — and it includes making sure that neither SOPA nor PIPA can possibly pass.