For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Wednesday, 18 January 2012

Oatmeal is an American Dish (aka Cutting the SOPA Rhetoric A Bit)


This guest Kat dutifully warned readers yesterday that the next post might be a bit editorial.


On the day that this Kat’s Twitter feed is blowing up with #stopsopa hashtags and rallying cries against American censorship and the Stop Online Piracy Act, this Kat would like to ask for a collective Deep American Breath and a little bit of calm.




(Dear Tweeters: Twitter will survive SOPA. This Kat guarantees it).




This (slightly adult-themed!) video, from The Oatmeal, one of the funniest sites in America, is a good example of the rhetoric that abounds in the U.S. from the tech industry about the devastating effects of the Stop Online Piracy Act (SOPA). It’s a very cute video, and would be highly effective at delivering its message, if the message were remotely accurate. The Oatmeal claims that by posting a photo of Oprah Winfrey (the richest woman in America, at last count) without Ms. Winfrey’s permission, under SOPA it could be setting itself up to be taken over and shut down by the U.S. government.


The U.S. government has long had the ability to seize infringing sites in the United States, which is where The Oatmeal is located. SOPA was designed to give the U.S. some measure of control over “foreign infringing sites.” The definition in the bill has been changing, and this Kat understands the technology crowd’s wariness that the bill could be construed broadly. (The content industry has stated that the bill is only intended to give them a weapon against the most egregious rogue infringing sites, but at last read, the language didn’t bear that out). But the bill does apply only to “foreign” sites, which at least means “not registered in the U.S.” The Oatmeal is registered in the U.S. Therefore, SOPA does not apply. The Oatmeal scaring us all with the idea of its demise at the hands of the U.S. government does not move the conversation forward in any meaningful way.


The content industry has been engaged in a certain amount of rhetoric, in this Kat’s opinion. It is perhaps not as clear as the industry would like us all to believe that curbing piracy will bring jobs back to the recording studios and movie lots. Technology is here, is evolving, and will replace a certain amount of need for human labor.


But this Kat humbly suggests that the hyperbole and misstatements coming from the tech side are the result of an automatic negative reaction to any attempt to control or regulate online activity. Censorship is a very legitimate fear, to be sure, but there is a conflation that goes on between “censorship” and “stopping illegal activity” which is perhaps unnecessary. The tech world would do well, this Kat believes, to respect its role as a developer of platforms for communicating and sharing content, while respecting the necessity of maintaining the rights of the content creators to distribute their content (or not) as they see fit. Record labels and movie studios, on the other hand, could perhaps work a bit harder to erase the perception that they believe that all technology is bad. If the dialog could start there, this Kat can only wonder what amazing win-win innovations could be dreamt up.

7 comments:

Christina said...

“Record labels and movie studios, on the other hand, could perhaps work a bit harder to erase the perception that they believe that all technology is bad.”

Um, but they do believe that all technology is bad. It’s hardly an unfair, unearned reputation; their reaction to each piece of new technology – from the pianola, to the VCR to torrents – has been one of panic and opposition. Perhaps instead they could work a bit on *actually ceasing to believe* that all technology is bad?

Andy J said...

Tara, I would like to thank you for useful and timely commentary on the progress of SOPA (and if necessary later no doubt, PIPA) through Congress. As an aside, I view this process much as I do the process of nominating the next Republican Party presidential candidate: little interest in the journey, more interest in the destination.
I think the nature of the tech reaction to SOPA merely takes a leaf out of the MPAA manual. 'When on the attack, hyperbole is your weapon of choice'. For years the content industry have been scaring politicians with entirely unsubstantiated figures for the losses their industry is suffering through piracy, and by and large, with the exception of people like the Pirate Party (which of course has very little constituency in the USA) no-one has been putting up any counter arguments. Not because they wish to support criminality, but in order to oppose the disproportionate nature of what is being proposed. Everyone on the tech side of the argument knows that sites like Newzbin2 will always be one step ahead of the legislators, and that the only real 'victims' will be the small fry and the truly innocent. And I don't think any one connected with the law believes for one minute the mantra 'this is only intended to be used in X circumstances'. When some smart District Attorney somewhere finds he can use this legislation to go against internet sites on some other issue which offends the American people (or more likely their elected represenatives), this legislation will be used as broadly and as widely as possible. If anyone is any doubt about this, they need to examine the Richard O'Dwyer extradition case for an example of both disproportionality and the tendency to use legislation brought in for one reason, only to be deployed for entirely different reasons
If Wikipedia, Google et al wish to overegg the pudding, they're only following a recipe written by the MPAA.

B said...

Your take that Twitter is a US-domestic site and therefore SOPA entirely does not apply is a little too simplistic.

First, the definition of domestic/foreign is not black/white. Twitter links are all shortened to a form like t.co/abcde, and .co is colombia. Is that sufficient for somebody claiming infringement to demand US registrars to block the t.co domain? What about twitter.co.uk and a few dozen others? Takedown notices can be sent by "qualifying plaintiffs", not just the US gov't, and we can expect the plaintiffs to use their power as broadly as the letter of the law permits.

Second, this is not about taking down thepiratebay.org, but about imposing obligations on the US domestic sites that link to or host ads for IP-infringing sites, so
there are a host of obligations to US search engines and advertisers. Is twitter a search engine? People certainly go there to look for links, and it has a search box, so we can expect that at least a few parties will demand that twitter itself remove links and implement an infrastructure to remove links on demand. Search engines may be liable for not preemptively checking links for copyrighted content, so there are reasonable odds that somebody somewhere will sue Twitter for inadequate filtering of user posts.

I thought http://blog.reddit.com/2012/01/technical-examination-of-sopa-and.html was a good writeup of the content of the law, and it details these sorts of problems that a domestic site can expect to have have with takedown notices.

[PS: if a qualifying plaintiff does a search for foreign blogs that link to thepiratebay.org and finds your site, and hands that to your US host Google in a long list of sites to block, do you know what legal recourse you have? How would you dispute the takedown at the time or have this error by the qualifying plaintiff reversed?]

Anonymous said...

“Record labels and movie studios, on the other hand, could perhaps work a bit harder to erase the perception that they believe that all technology is bad.”

You just don't get it. The entertainment industry spent $91 million on lobbying efforts to pass this legislation. Disney REFUSED to meet with tech companies over PIPA/SOPA. Hollywood has made it clear they don't want to "work a bit harder to erase the perception that they believe that all technology is bad."


"But this Kat humbly suggests that the hyperbole and misstatements coming from the tech side are the result of an automatic negative reaction to any attempt to control or regulate online activity."

Nope. Wrong again. SOPA/PIPA are the product of intense lobbying efforts by Hollywood, and lawmakers who really are *clueless* when it comes to technology (they even admit it themselves, if you watch the C-SPAN clips of SOPA hearings). Furthermore, hundreds of law professors from around the country are arguing that this law is flat-out unconstitutional. Have you read the bill? Maybe you should, before making naive statements like this.

Here's a good place to start: http://www.techdirt.com/articles/20120117/23002717445/updated-analysis-why-sopa-pipa-are-bad-idea-dangerous-unnecessary.shtml

Tara said...

The Reddit blog was quite good, but it is out of date. As of the Manager's Amendment to SOPA, at http://judiciary.house.gov/hearings/pdf/HR%203261%20Managers%20Amendment.pdf, plaintiffs no longer have takedown power without a court order. Search engines such as Google and Twitter may have to take down certain content upon a court order, but this arguably grants the party who posted that content more protection than a U.S. user has under the Digital Millennium Copyright Act, where takedown notices happen all the time. Perhaps I should have posted the Manager's Amendment in the blog. And anyway, unless The Oatmeal allows users to post content (and I don't think it does), it is difficult to see how that particular site would fall under the definition of a service provider.

The most recent definition of "foreign infringing site" is, in artfully enough, a site which is "not domestic." A "domestic site" is one whose domain name is assigned by a U.S. registrar (e.g., namecheap.com, where the Oatmeal is registered). I'd have to research more into what sort of arrangement allows Twitter to use the shortened .co extension, but Twitter is a domestic site, and I suspect (although I can't be certain without further research) that its user-generated shortened links are domestic domain names as well. Twitter may well be faced with court orders to remove content, but at least it won't be taken down. Not under SOPA, anyway. It's those kinds of claims that this Kat was trying to get at.

Tara said...

Christina - thanks for your comment. (@Johnthelutheran on Twitter called it "Gold"!) I agree with you - the industry fights technological evolution every step of the way. But I'm not sure it's the technology they're afraid of (Kodak, I believe, is praying that they are). I think it's the change. This may be an academic point, and certainly it is my personal opinion. But they always say, in every debate, "we love technology!" So I think they could do a much better job of showing that that's true.

Tara said...

Andy - I agree that hyperbole has been a weapon for thousands of years, and certainly by the content guys as much as anyone. However, I do take issue with the automatic assumption that the law will be abused. If a D.A. has found a site that he doesn't like, as the law reads now, he would have to find a good deal of infringing content on it to be able to get a judge to give him the court order he needs to do anything about it. And the infringing content, in my opinion, should be removed, whether it is a political message or not. We have lots of case law here that says that the First Amendment protection of free speech is not an effective defense against wholesale copyright infringement. Of course, we can't predict which sites the government will choose to go after, and certainly, some of them may be "small fry." Part of this debate is certainly about whether legislation that may well only successfully stop the most minor crimes is legislation that we should have at all, if the risk of unintended consequences is too great. About the O'Dwyer case, I only know what about it what Catherine Lee wrote, so I'll have to do some better research and hopefully come back to you with a decent response. But thanks very much for engaging!

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