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.

Reader Comments (rss)

(Flattened / Threaded)

  1. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, May 12th, 2014 @ 10:19am

    Mike Masnick just hates it when copyright law is enforced.

     

    reply to this | link to this | view in thread ]

  2.  
    icon
    Sophmoric A-Hole (profile), May 12th, 2014 @ 10:31am

    Re:

    Stupd comment, I changed my name to what yours should be...

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    That Anonymous Coward (profile), May 12th, 2014 @ 10:35am

    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.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, May 12th, 2014 @ 10:39am

    Re:

    SOPA? We don't need no stinking SOPA.....

    Let's face it; the "defeat" of SOPA was in name only. Most of the tenets are in place (and then some) but without any judicial oversight.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, May 12th, 2014 @ 10:45am

    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!

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, May 12th, 2014 @ 10:51am

    Dear Congress,

    Get your own shit in order before breaking ours.

    Regards,
    The American Public.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Coward, May 12th, 2014 @ 10:55am

    Re: Dear Congress,

    Dear Stupid,

    They are "voted" in. Our shit is already broken!

    The 'Stupid' American Public.

     

    reply to this | link to this | view in thread ]

  8.  
    icon
    gorehound (profile), May 12th, 2014 @ 11:03am

    MAFIAA Dirty Laundry really needs to be Aired once and for all.Where are all the Web Warriors.Surely there are some pretty smart guys out there who can answer the call and show the people what lies beneath the surface of the foul MAFIAA & their corrupt politicians.

     

    reply to this | link to this | view in thread ]

  9.  
    icon
    jupiterkansas (profile), May 12th, 2014 @ 11:07am

    Re:

    TechDirt seems to be doing just that.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Andypandy, May 12th, 2014 @ 11:25am

    Bribes

    Someone really needs to get a hand on bribery in the US, Is bribery not a reason the US puts restrictions on trade in other countries, maybe the EU should restrict US trade until they remove the legal bribery in the system

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, May 12th, 2014 @ 12:06pm

    Re: Re:

    Or trying. Not any more dirty laundry there than any other industry.

    Well at they didn't have to pay a half-billion dollar fine for illegal selling of drugs like a certain company did.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, May 12th, 2014 @ 3:44pm

    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:

    http://www.bobgoodlatte.com/
    http://www.schiff4congress.com/
    http://www.whitehouseforsenate.com/
    http://www.orrinhatch.com/

    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.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous, May 12th, 2014 @ 4:43pm

    Re:

    SFW? So do I.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Anonymous, May 12th, 2014 @ 4:45pm

    I just keep doing what I want no matter what the government says.

     

    reply to this | link to this | view in thread ]

  15.  
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    CK20XX (profile), May 12th, 2014 @ 6:13pm

    Re: Re: Dear Congress,

    Actually it's probably more like the game is rigged, like George Carlin said.

     

    reply to this | link to this | view in thread ]

  16.  
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    Seegras (profile), May 13th, 2014 @ 7:14am

    Re: Problem solved

    Did anyone notice, these congress members advocate something pretty much like "swatting"?

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    DP, May 13th, 2014 @ 9:42am

    Re:

    Law? I don't recall seeing anything about law.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Zonker, May 13th, 2014 @ 11:12am

    ...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.

     

    reply to this | link to this | view in thread ]

  19.  
    icon
    GEMont (profile), May 13th, 2014 @ 7:19pm

    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.

    -

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Anonymous Coward, May 23rd, 2014 @ 6:26pm

    Re:

    Good attitude, because the Government keeps doing what it wants to do no matter what the public says.

     

    reply to this | link to this | view in thread ]


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