12 Things You Could Still Do If SOPA Had Passed

photo by tomasmikula

Because today is the five-year anniversary of “Blackout Day,” the day millions of users were suckered into doing the internet industry’s bidding for no good reason, the always-relevant BuzzFeed offers us a missive published by the organization ReCreate Coalition called “12 Things You Can Do Because Congress Protected Internet Freedoms,” by which they mean backed off the passage of SOPA/PIPA on January 18, 2012.

But there’s something magical about the twelve things listed; it’s kind of like a palindrome in that it is also a list of things you would still be able to do if SOPA/PIPA had passed. Let’s not equivocate on this matter.  I mean not one of the activities mentioned was in any way threatened by SOPA/PIPA.  And you know how we know this? Because those bills didn’t expand rights or restrict exceptions like fair use under the copyright law. If you engage in any or all of the listed activities and actually infringe a copyright, you’re just as potentially liable right now as you would be if those bills had passed. For reasons known perhaps only to the folks at ReCreate, they chose the following:

1. Share puppy videos instantly to Facebook.

2. Post a breaking news clip on Twitter.

3. Review a new restaurant on Yelp.

4. Comment on an article at a news outlet like Deadspin.

5. Use Wikipedia for that history paper on Alexander Hamilton…

6. Post a funny meme to Reddit.

7. Save a healthy recipe on Pintrest…

8. Repost a motivational quote on Instagram.

9. View and share family photos on Flickr.

10. Write a political opinion blog on WordPress.

11. Post a manequin challenge on YouTube.

12. Listen to a podcast on SoundCloud.

None of these actions inherently requires the use of copyrighted works. Some are actually hard to fathom how such a use is even implied. For instance, it’s pretty tough to share your own family photos and infringe a copyright, which suggests the ReCreate folks really put their A-Team on this little project.  But, don’t kid yourself.  If your political opinion blog includes the publication of a copyrighted photograph used without permission, you’re exactly as liable right now as you were before anyone even heard of the acronym SOPA.  Those bills were aimed at foreign-based, enterprise-scale pirate site operators and required substantial, costly evidence to enforce. It would not have been legally possible for rights holders, under SOPA, to give any more of a damn about private videos and restaurant reviews than they do right now.

The remedies provided by SOPA/PIPA were based on existing practices already used by courts when providing injunctive relief—all of which have been applied in various cases, and all without destroying the internet, the First Amendment, or your ability to “share puppy videos instantly on Facebook.”  Since 2012, sites have been shut down, URLs delisted, and credit card services denied to various types of bad actors; and yet the web keeps humming along in all its mannequin-challenging, motivational-quoting, and funny-meme-making glory.  The anti-SOPA campaign was one of the most effective fake news stories of all time, and celebrating the anniversary of being fooled is well…you finish the thought.

I assumed the buzz in BuzzFeed referred to current events, but perhaps it’s a literal reference indicating that any party, no matter how stoned they are, is free to publish any nonsense they cobble together via their platform. So, I guess we should add a thirteenth item to the list that would also, sadly, still be kosher in a world with SOPA & PIPA:

13.  Click-bait bullshit could still pretend to be information.


© 2017, David Newhoff. All rights reserved.

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  • I understand the rationale against SOPA. Posting copyrighted content without permission is illegal. Posting instructions on how to commit a crime (such as, say, providing a URL where one can obtain copyrighted content) is free speech. The argument people were making against SOPA was that would’ve made the posting of the link just as illegal as posting the content itself, and it would make the website in which such a link was posted liable. A website that allows users to post content, whether it be pictures, videos, or simply text, cannot prevent users from posting such a link, at least without preventing users from posting anything else. As such, if SOPA passed, in order to prevent liability, websites would not be able to allow users to post anything. An internet in which no one is allowed to post anything is a broken internet. I’m certain that wasn’t the intention of SOPA, and I’m certain the law wouldn’t have actually been enforced in such a manner, except against the dedicated pirate sites. But the 12 sites above wouldn’t have been able to operate with that liability, whether SOPA was actually used against them or not.

    The Safe Harbor provisions of the DMCA are important. I do think Safe Harbor needs to be amended, but it would be wrong to get rid of it completely. All that said, SOPA had some very good things in it, and I think it should’ve simply been revised, rather than thrown out completely. SOPA was a good idea that just went too far in it’s reach. I hope we can revisit this sometime and come up with a solution that’s more reasonable.

    • Thanks for your comment. What you about links, however, is not accurate. The targets of any relief under SOPA had to be foreign-based sites that were dedicated to mass infringement as an enterprise, and the claimant had a high burden of proof. Right off the bat, anything taking place in the US was simply unaffected by SOPA, and really activity that wasn’t a PirateBay type enterprise wasn’t a target. Not only is that how the statutes were written, but just as a practical example, the cost to a rights holder to pursue a case under SOPA would be too high to try to address small-scale infringements. I understand the comment you’re making was a widely-promoted message, including by Jimmy Wales, but it just wasn’t true.

      Indeed, nobody proposes ending safe harbors. But since 1998, the ISPs have often failed to uphold their end of the bargain in exchange for that shield, and that’s the problem.

      • I agree that the chances of anyone actually using SOPA to go after legal US sites were extremely unlikely. That said, if I were one of their lawyers, “extremely unlikely” would probably still keep me up at night. I would want assurances in the law itself that as long as they don’t become a Pirate Bay type enterprise, they wouldn’t face any liability, and the scenario described above would never happen. I think it was possible to amend the language in SOPA to provide those websites with the assurances they needed, and still have the law serve it’s intended purpose. It’s a shame things went down the way they did.

      • As stated to Anonymous, the copyright law already stands as the means by which US-based rights holders may address US-based infringements. The language in SOPA does not provide for the kind of abuse you’re describing, and the burden of evidence a rights holder would have had to provide was actually much higher than the evidence a rights holder brings into a US court in a typical copyright infringement case. If nothing else, you can believe that it would be cost-prohibitive for a rights holder to “abuse SOPA” in the ways that people were worried about, let alone to affect any of the activities on ReCreate’s silly list. The entire premise of SOPA began with a means to address foreign actors who are beyond the reach of US law and who are operating large-scale pirate sites. It’s just common sense. Do you focus on the tens of millions of for-profit infringements that truly replace the legal market, or the hundreds of incidental possible infringements that don’t?

      • But it was in the legislation:

        SEC. 102. Action by Attorney General to protect U.S. customers and prevent U.S. support of foreign infringing sites.

        the entire thing was premised on sites that if they were domestic could be seized.

        the Internet site would, by reason of acts described in paragraph (1), be subject to seizure in the United States in an action brought by the Attorney General if such site were a domestic Internet site.

        Almost every paragraph said ‘foreign’.

        IOW the SOPA crowd lied and lied and lied, and they all lapped it up. No one actually read the act they just took what was told to them as some form of gospel. It is no wonder that 5 years on you’ve got Trump as:


      • It’s a little hard to tell whether you’re arguing or agreeing from your description, especially since I don’t think there was a “SOPA crowd” per se. But you seem to be cherry-picking elements from the bill (and associating this with Trump is silly). But the point is that the foreign-operated site would have to be “US-directed,” which is not the same thing as US-based and/or operated. The simple answer is this: the copyright act already provides remedies for rights holders in the US against US-based infringers. Nothing in SOPA amended or augmented the copyright act. A domestic rights holder with a claim against an infringing site operated by a party in the US would avail himself of the remedies in the copyright law. It would not have been legally possible for said parties to pursue action beyond the statues of the copyright law, which existed before SOPA and exists right now.

      • I should have said “anti-SOPA”. We seem to be in a post truth world where lies that coincide with our biases go unchallenged. This happens epecially where people get their worldviews from fragmented echo chambers. That happened with the tech companies denigration of SOPA, with Trump throughout his campaign, and in the UK with Brexit.

      • Thanks for clarifying. It was a little hard to tell. And, yes, if we’re talking about the anti campaign and how it worked, then I do agree that there’s a link between that story and broader political narrative unfolding.

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