Legal Issues

by Glyn Moody

Filed Under:
pipa, sopa, vigilante, wild west

We Don't Have A 'Wild West' Internet Now, But We Will If SOPA Or Similar Is Passed

from the exactly-wrong dept

Nicolas Sarkozy, the President of France, has the sad distinction of being in the vanguard when it comes to really bad ideas concerning the Internet. On his initiative, France became the testing-ground for the three-strikes approach of throwing people off the Internet upon multiple accusations of copyright infringement, without the need for proof or a court order, known there as HADOPI. He also helped put into circulation a view that is much in vogue at the moment:

"Internet is a new frontier, a territory to conquer. But it cannot be a Wild West, a lawless place"
That's what he said in 2010, during a speech he gave in the Vatican. Since then, the "Wild West" Internet has become the standard justification for bringing in harsh new laws like SOPA and PIPA. After all, the argument goes, just as the Wild West had to be tamed in order to become civilized and productive, so must the Internet.

Of course, this overlooks the fact that the Internet is already subject to a whole host of laws in every country. Indeed, often it is subject to multiple jurisdictions because of its global reach and complicated legal position. But there's an even deeper sense in which the idea that the Internet is a Wild West that needs far-reaching laws like SOPA and PIPA imposed upon it is exactly wrong.

To see why, consider one of the key ideas of SOPA in the original version:

The Stop Online Piracy Act (SOPA), the companion bill to the Senate’s PROTECT IP Act, would further privatize adjudication and punishment. Title I of that law (dubbed the E-PARASITE Act) creates a “market-based system to protect U.S. customers and prevent U.S. funding of sites dedicated to theft of U.S. property.” It achieves this by empowering copyright owners who have a “good faith belief” that they are being “harmed by the activities” of a website to send a notice to the site’s payment providers (e.g. PayPal) and Internet advertisers to end business with the allegedly offending site.

The payment providers and advertisers that receive the notice must stop transactions with the site. No judicial review is required for the notice to be sent and for the payments and advertising curtailed -- only the good faith representation of the copyright owner. Damages are also not available to the site owner unless a claimant “knowingly materially” misrepresented that the law covers the targeted site, a difficult legal test to meet. The owner of the site can issue a counter-notice to restore payment processing and advertising but services need not comply with the counter-notice.
That was removed in December, but another section granted immunity to service providers for taking voluntary action to stop infringement. As we noted back then, in many ways that was even worse. Not only would sites on the receiving end of a notice claiming infringement have a huge incentive to take that voluntary action, rather than risk losing immunity, but there were also no counternotice rules, or anything requiring any process for those cut off to be able to have any redress whatsoever.

What both of these approaches and France's HADOPI have in common is that they all seek to institute a system that is extra-judicial, with no requirement for proof of any kind, and which is hard or impossible to appeal against. It is the very definition of arbitrary vigilantism, where private actors get to be judge, jury and executioner. In other words, far from taming a "lawless place" online, SOPA and its ilk would create one where there is none currently.

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  1. identicon
    Alien Bard, 7 Feb 2012 @ 4:18pm

    The truth about the old west

    I've never understood the big claims about the so-called 'lawless' wild west. The truth is that the old west was far from being lawless. It may not have had the thousands of stupid laws that abound today, but it had all the important laws. And those laws were enforced with stark reality. Gunmen and outlaws died young, often from hanging. The settlers didn't take kindly to real threats, and serious criminals tended to get chased out of town and hunted down by the posse in short order. That's why the old west thrived and grew so fast. They were safe enough from bandits, and weren't being repressed by stupid laws. They could focus on innovation and effort instead of having to keep looking over their shoulders.

    The only place the bad guys run wild is in Hollywood movies. There are maybe a half-dozen true stories about bandit/outlaw gangs and hundreds of movies retelling them over and over and over again.

    Think about it. If the old west were really the way Hollywood describes it would the banks actually have had less security features then they do today? Heck no, they would have had three full-time gunmen sitting guarding the place at all time. The funny thing is that they did exactly that in the 'civilized' eastern cities.

    So if the Internet is anything like the old west, then that is actually a serious compliment, since it means that stupid laws don't exist and people can surge forward with the wonderful creativity and vitality that made originally created this civilization and made it thrive!

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