Congress Weighs Taking the War-on-Drugs Approach to Fighting Internet Piracy

Protecting intellectual property is important, but the Stop Online Piracy Act would harm innocents and undermine due process

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Congress is weighing a bill that would fundamentally change how the Internet works. It would affect even the most casual web user, who does no more than browse Facebook or watch YouTube videos or store photos on Flickr. Despite its importance, few people understand the legislation: It sounds complicated to outsiders.

But don't tune out!

A quick primer is enough to grasp the high stakes, and there are two huge payoffs: 1) You can help save the Internet. 2) You can see beyond this specific bill's flaws to the general error in thinking its supporters embrace. That's important, for the same error is behind many of the most destructive laws in the United States.

Once you recognize it, you'll see it everywhere.

Who supports the Stop Online Piracy Act?

Mostly copyright holders and their associations. Viacom. Time Warner. Disney. The Recording Industry Association of America. The Motion Picture Association of America. The Internet makes it easier to consume intellectual property bankrolled by these entities without paying for it. Perhaps you've illegally downloaded a song, or posted a TV show to YouTube, or downloaded a whole pirated movie from a foreign website. Having invested in producing lots of albums and feature-length films, it's easy to understand why a Fox or Universal or BMI would want to prevent people from consuming them without paying. They argue doing so is every bit as legitimate as a department store working to prevent shoplifting or a neighborhood bank guarding the cash in its drawers.

There's a heated debate about whether illegally copying an .mp3 file is equivalent to stealing a CD from a record-store shelf. For the purposes of this piece, let's assume that the industry lobbies are correct -- that stealing intellectual property is equivalent to shoplifting from a retailer.

The Stop Online Piracy Act is meant to help stop that kind of stealing and other problems besides. "Whether we're talking about copyright or trademark, software or American-made apparel, U.S. businesses are getting robbed and U.S. consumers are getting duped," one proponent told Congress. "You can still search for 'drugs without a prescription' and yield natural search results for scores of illegal on-line pharmacies. We still see legitimate ads being placed on illegal sites dedicated to offering infringing movies or music. And thousands of sites still offer counterfeit products, many of which affect the health and safety of consumers. These sites are easy to locate, and you can still use your credit card to obtain these products. This problem is not going to just go away on its own."

Thus the remedies proposed in the law.

Fight for the Future, a group opposing the legislation, does a good job laying out the particulars and articulating specific objections in this short video:

To sum up, the Stop Online Piracy Act goes after piracy by targeting not just copyright violators, but entities on the Internet with which they might interact. And the way the law is written, these other entities will be effectively forced to censor content not after piracy has been proven, but when it is merely alleged. "One infringing file or 'portion' (e.g. a forum thread) could be used as the basis to take down an entire website," Devin Coldewey writes at the blog TechCrunch. "That's a hell of a lever to have at your disposal, and the process for review is slow enough that it could easily be used as a perfectly legal kill switch for any site on the internet."


After reading the bill, I thought about a story I reported on several years ago. It isn't a perfect analogy, but it is worth pondering. When the 210 Freeway opened, it was good for residents of Alta Loma, Calif., who could get to and from Los Angeles more quickly. But nearby bank branches had a problem. Suddenly it was easier to rob them and escape. A masked man could snatch a few thousand dollars, hop in his car, and be speeding away at 70 MPH in under a minute. It had taken half-an-hour to reach a freeway. The new infrastructure made it significantly easier to get away with stealing from the local banking industry! Yet no one thought that California's Department of Transportation was obligated to help catch the thieves using its network of high-speed roads.

Here's an even shorter story.

Copy machines were a boon to business when they became widespread. Goodbye carbon paper, hello inappropriate office humor. Fax machines were an excellent invention too. A document could be sent across the country without having to transport it. These inventions made it much easier to reproduce and send copyrighted material. Doing so was illegal. But we didn't respond by holding office hardware or telephone companies responsible for any user who broke the law.

Just one more.

Phone books list all sorts of businesses, a small percentage of which engage in illegal activity. Yet I could never call Pac Bell and demand, "Hey, my house got robbed a few weeks back, and when I went into this pawn shop, they had my television set. Remove them or you're liable!"

When it suits their ends, copyright holders argue that online theft is analogous to theft in the real world. All I mean to say in telling those stories is that in the real world, we often recognize that a law that would in fact reduce a specific type of crime is incompatible with an efficient, free society. Shoplifters frequenting brick-and-mortar stores might justify tougher penalties for those caught; it could never justify making taxicabs, streetcar operators, car rental companies, and ferry operators liable anytime someone uses their services to return home from a shoplifting outing.


Of course, there are times when our real-world laws get out of hand -- when policy-makers and law enforcement act as if the commission of a particular crime demands a maximal response, as if anything less would irrevocably compromise the rule of law.

Examples of such excesses are legion. A high-speed chase heading toward a busy intersection? Keep after the guy, pedal to the floor. Can't enforce the arbitrary TSA safety requirements for air travel without groping the genitals of passengers or taking naked scans of their bodies? Oh well. There's terrorists to be caught! Drug war not winnable unless we refashion municipal police forces into paramilitary squandrons, eviscerate the Fourth Amendment, and send DEA agents to intervene in Latin American civil wars? Allocate billions to the project, for the War on Drugs must be won. Can't stop illegal immigrants from entering the country? Pass laws that require all public employees to note the legal status of those they interact with, no matter how disruptive to their civic functions or demeaning to legal Hispanics constantly asked for their papers.

The Prohibition Mindset is my name for the attitude that widespread lawbreaking always calls for more draconian laws and law-enforcement tactics. Citing unlawful acts, the state asserts more power, which fails to reduce illegal behavior; the failure is used to justify more of the same approach; eventually society is harmed by the increasingly zealous enforcement efforts more than the underlying crime. A mature society is one that can distinguish between 1) times when lawbreaking requires new, more robust laws, 2) when the appropriate conclusion is that there will just always be some level of crime, and 3) when the prohibition itself is incompatible with a free society.


There are good reasons to chase criminals when they run from the cops, to screen passengers prior to flights, to arrest heroin kingpins, and to enforce immigration laws. But a prudent government never pursues any of those ends so zealously that, even in "success," its polity is harmed more than helped. Alas, if your only job is to run the DEA or TSA or CIA or FDA or EPA, there is no incentive to maximize the overall welfare of American society. Bureaucrats who head these agencies sometimes forget that everything isn't subservient to their narrow ends.

The Stop Online Piracy Act shows what happens when single-minded zeal originates not with bureaucrats or lawmakers, but with well-connected industry groups understandably focused on a narrow set of interests. They've been able to advance them not only due to the legalized bribery of modern lobbying, but for these reasons too: 1) The industry has a core grievance that is legitimate; 2) Congress is disproportionately made up of older people who are clueless about the Internet; and 3) this stuff is complicated, so neither journalists nor the general public have paid much attention to it.

This week, people outside the tech community started paying more attention to this bill. And under scrutiny, it's obvious that even a conservative accounting of its costs far outweigh even an optimistic assessment of its benefits. To sum them up, the certain costs include disrupting the business models of countless technology companies that are not in the business of piracy; handing the federal government substantial and unprecedented powers over the Internet; entrenching a guilty-until-proven-innocent attitude toward copyright infringement; making the Internet less secure for everyone; arguably infringing on the First Amendment; contravening internationally recognized Internet standards; and undermining international press freedoms and human rights.

In return, online piracy will perhaps be marginally more difficult, though by no means will it be impossible. Perhaps big entertainment companies will see a slight boost in profits. And perhaps U.S. consumers will enjoy a bit more protection against, for example, foreign sites selling counterfeit drugs. The glaring mismatch between costs and benefits is perhaps what has inspired Reps. Nancy Pelosi and Darrell Issa to take the unusual step of agreeing that a bill is bad. Thank goodness for the backlash. Just as the impossibility of eradicating the drug trade and the insistence that we must do so has led to increasingly draconian attacks on civil liberties and harm to innocent parties, so this bill treats the daunting challenge of ending Internet piracy as license to implement measures so extreme we'll all suffer under them in myriad ways.

Image credit: Flickr user Nicolas Nova