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. icon
    Richard (profile), 8 Feb 2012 @ 3:39am

    Re: Re: Re:

    Wow, talk about going a long way to make a small point. I would say that the only difference is one of perception, that is to say "ragged children in the street" rather than "ragged children on dusty farms far from sight".

    If you read a bit more of Henry George's work you will find that point is thoroughly addressed - and debunked.

    "A primitive tribe may not produce much wealth, but all members are capable of an independent life. Each shares all the knowledge possessed by the tribe. They know the habits of animals, birds, and fishes. They can make their own shelter, clothing, and weapons. In short, they are all capable of supplying their own wants. The independence of all of the members makes them free contracting parties in their relations with the community.

    Compare this savage with workers in the lowest ranks of civilized society. Their lives are spent in producing just one thing or, more likely, the smallest part of one thing. They cannot even make what is required for their work; they use tools they can never hope to own. Compelled to oppressive and constant labor, they get no more than the savage: the bare necessaries of life. Yet they lose the independence the savage keeps. "

    The wild west concept meant that most men died young, where simple medical issues were not addressed because doctors refused to set up shop, and most people lived in constant fear of the lawlessness that existed.

    Situations that make it almost impossible to do honest business, because you are more than likely going to get held up, have your products stolen, or your business destroyed by people who don't care about the law or what is fair.

    I think you've been looking at the fictional wild west - not the reality here. There may have been few doctors - but then the population would not have suffered many on the diseases that contemporary city dwellers fell prey too. Plus of course the doctors of the day were beyond the financial means of the poorer half of society.

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