Congress Continues To Pretend That SOPA Actually Is The Law

from the shameful dept

One of the more troubling aspects that we’ve seen in the past few years is that, despite SOPA failing to pass in Congress, thanks to widespread public outcry, various copyright interests have continued to look for ways to push forward ways to implement SOPA in practice, even if not in law. For example, we recently pointed to how the USTR praised Italy for implementing a plan even more draconian than SOPA, likely leading to a later attempt by the USTR to “harmonize” international laws by requiring the US to do the same in a future trade agreement or treaty. Similarly, the US government still continues to do questionable domain seizures that appear to be a clear First Amendment violation. Even more nefarious, however, may be the various attempts by politicians to push for questionable “voluntary agreements” that effectively implement SOPA anyway.

Recently, four members of Congress — Reps. Bob Goodlatte and Adam Schiff, and Senators Sheldon Whitehouse and Orrin Hatch — sent an exceptionally questionable letter to various internet ad networks, asking them to start blacklisting “piracy sites.” This was one of the requirements in SOPA. And, as we discussed years ago, there are serious problems with such plans. Back in 2011, ad giant GroupM tried to do the same sort of thing, asking Universal Music to provide it with a list of piracy sites, and that list included tons of legitimate sites — including SoundCloud, Vimeo, the Internet Archive, BitTorrent’s corporate page… and a bunch of hip hop blogs. It also included (Universal music artist) 50 Cent’s personal website as a piracy site.

And these four members of Congress seem to have no problem with such censorship.

But this letter is even worse than that. Various ad networks have already set up “best practices” for not putting ads on “bad” sites — but this letter says that’s not enough:

We support these steps, but note that much remains to be done to operationalize the commitments made and to make them effective in preventing the appearance of legitimate ads on pirate sites, rather than simply responding once they are placed. Best practices are useful, but greater specificity is needed around preventative measures that participants in the digital advertising ecosystem can and should take to avoid the placement of ads on piracy sites, as well as the development of metrics to measure the effectiveness of these steps. Only through proactive efforts will the harms associated with ad-supported piracy be mitigated.

As the EFF notes, such intimidation by members of Congress raises a whole host of legal problems:

Letting commercial companies with their own competitive motivations decide which sites are “rogue” or “pirate” sites is a recipe for abuse. It means that site owners who comply with copyright law could still have their sources of revenue cut off when a company who might be a competitor asks for it. The legislators’ letter doesn’t define “online piracy sites,” but most of the definitions we’ve seen lately focus on the number of takedown requests a site has received from copyright holders, or the number of requests sent to search engines about the site. Since just a few companies send out a large portion of the takedown requests, those companies would effectively have the power to control who gets deemed a “piracy site.”

As a federal law, this scheme would have created serious First Amendment and due process problems. As a private agreement among competing ad networks, it could raise other legal problems. Under the Sherman Antitrust Act, companies that compete with each other aren’t allowed to make a pact amongst themselves about who they will refuse to do business with, especially if the purpose of the pact is to squelch competition or punish a rival. It’s called a “group boycott” or “concerted refusal to deal,” and it can lead to big-money lawsuits and years of trouble. In some cases, groups of competitors sharing a list of companies that they deem to be bad actors, with a wink-wink understanding that no one in the group should do business with those companies, was deemed a violation of the Sherman Act1.

Claiming that an industry-wide refusal to deal is justified by “fighting piracy” doesn’t necessarily avoid an antitrust jam. In 2003, the Motion Picture Association of America decided that its members, major movie studios who compete with one another, would no longer send pre-release “screener” copies of films to members of awards committees like the Motion Picture Academy. According to the MPAA, the group boycott of awards committees was needed to stop infringement of pre-release movies. But the group ban put smaller studios at a huge disadvantage in getting award nominations and votes. In just two months, a court decided that the MPAA’s screener ban was likely illegal, and that loss may have precipitated MPAA head Jack Valenti’s retirement a few months later.

Once again, we have lawmakers — with an unfortunately long history of being the movie and recording industry’s lapdogs in Congress — making suggestions that would make those industries happy, but which almost certainly violate the law. And, even worse, they clearly go against the will of the American public, who vocally rejected such measures when they were put into SOPA and PIPA.

Could it be that Reps. Goodlatte and Schiff, and Senators Whitehouse and Hatch, have already forgotten what happened when they pushed for such a law? I can assure them that the American public hasn’t forgotten.

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Comments on “Congress Continues To Pretend That SOPA Actually Is The Law”

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That Anonymous Coward (profile) says:

So the country is falling apart and they make sending a letter to intimidate companies to do what a small group wants to happen a priority.

Perhaps we need to look closer at donations and support they are getting, and consider they are no longer qualified to work for the people when they opt to push for policies that violate the foundations of the country.

Anonymous Coward says:

since when has any law maker or politician worried about the law when the companies/industries funding them say something wants doing? the last ones that are worried about are the people! almost every country atm is going down the same road where they are being run by politicians who are in league with big businesses! it has been tried before and has failed, i hope this time is the same. to allow a country to be ruled by a business would be disastrous! to have the planet ruled like that would be catastrophic! absolutely nowhere should allow money to run rough shod over everything and everyone else, making profits for the few the priority!

Anonymous Coward says:

Problem solved

Since it must be legal to have innocent names on this list, otherwise the honorable congressmen and senators wouldn’t be doing this, I have a simple solution. Buried deep in the list of websites in random spots, just add the following four lines:

Of course, since they’re not pirate websites, it shouldn’t cause any headache for their sysadmins or result in any downtime for their site at all.

Zonker says:

…asking Universal Music to provide it with a list of piracy sites, and that list included tons of legitimate sites — including SoundCloud, Vimeo, the Internet Archive, BitTorrent’s corporate page… and a bunch of hip hop blogs. It also included (Universal music artist) 50 Cent’s personal website as a piracy site.

Those legitimate sites are actually what the likes of Universal are *deliberately* targeting. They are targeted because they are Universal’s competition for control of the distribution channel. If artists were to distribute on any of these sites themselves (especially on their own web site like 50 cent) then they would have no need to sign over their copyrights to Universal and the cash cow dies. Artists would be making money and Universal would make nothing, dying out like the dinosaur they are.

“Piracy” the name MPAA/RIAA’s uses when refering to their “competitor”, it does not matter if they’re infringing copyright or not.

GEMont (profile) says:

What will be will be...

“Congress Continues To Pretend That SOPA Actually Is The Law.”

Well, why not?

After all, come hell or high water, it WILL BE the law.

The powers-that-be demand it and that is all there is to it.
It is now just up to the corporate minions called government, to get the job done.

What the US needs now is a big “disaster”, or “war” to get the public looking “over there”, so the boys can push all their pet laws into place quietly and I’m sure they’re working diligently on that front.

But failing that, they will simply have to shove them down the public’s throat, because these ownership society laws mean mega-bux to the top of the capital food chain and they will not allow the public to thwart their demands again.

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