The Knights Who Say SOPA

At last count, the EFF has over 40 attorneys on staff* and lord only knows how many communications minions.  So, if this organization is going to maintain its loose relationship with reality, they might at least take a meeting and invent some fresh exaggerations.  But no. SOPA is just too provocative a buzzword to let go. And as part of their unrelenting strategy to keep trying to scare the hell out of people, the EFF has invoked SOPA so many times, I’ve personally run out of colorful metaphors by which to mock them for it and have had to resort to Monty Python references.

For instance, in this recent missive, EFFer Mitch Stoltz uses the acronym SOPA seven times in the first four paragraphs, which might lead the reader to think that the subject of the article has something to do with SOPA.  Of course, it has nothing to do with SOPA.  Heck, SOPA didn’t even have anything to do with SOPA, but let’s not worry about that right now.

What the knights at the EFF are saying SOPA about at the moment is the fact that as part of the major motion picture studios’ litigation against the pirate network MovieTube, they are seeking injunctive relief that would include disabling domains registered to the network and the discontinuation of services to MovieTube sites by third-party providers.  Granting such an injunction, according to the EFF, is reason to say SOPA, meaning that such a ruling by the court would inevitably lead to crippling the Internet as we know it.  Sound familiar?

But true to form for the EFF, Stoltz neither acknowledges that MovieTube is doing any tangible harm nor the fact that the relief being sought by the studios is far from unprecedented legal territory.  It is well-settled law that injunctions against a named party, which is directly harming a plaintiff, can also bind third parties that may be contributing to, or facilitating, ongoing harm.  And although this principle is nothing new in legal terms, it is a chronic sticking point for Internet companies because they are frequently facilitating harm, whether they mean to or not.  But, in another case involving injunctive relief, the British Columbia  Supreme Court demonstrated in the Equustek case that Google may be ordered to de-index on a global basis all sites (and not just pages) belonging to a business that was engaged in counterfeiting the plaintiff’s products and using its websites to hijack Equustek’s likely customers.  And still the Internet hums along.

Of course, Silicon Valley doesn’t like this sort of thing, but not because of anything to do with your freedoms so much as with their bottom line. News flash:  industries don’t like regulation.  And so, the Web industry likes to portray every prospect of this type of legal action — especially when it involves the motion picture industry — as the beginning of the end.  They say SOPA, and hope the peasants cringe. (And make no mistake, to the wealthy .01 percent of that industry, we are all peasants.) Thus, the EFF invests tremendous energy in this strategy, breathlessly warning us about the inevitable doom that will surely follow if, heaven-forbid, the rule of law might apply to trade across our precious tubes.

Stoltz’s post implies a lack of due process and a dangerous slippery slope, despite the fact that injunctions are court ordered on a case-by-case basis.  And just because an entity is granted this type of relief in one case does not mean it will then have free reign to seek random, baseless injunctions at will. (Or is the real problem that the Internet companies are acutely aware of how much global traffic is driven by piracy, that they really don’t want to go there; and they can always rely on millions of people who like free media to help evangelize their erroneous legal claims?)  If so, they should at least call it what it is and lay off the pretensions to be upholding some principle for the greater good.  Yet,  Stoltz writes:

“If the court signs this proposed order, the MPAA companies will have the power to force practically every Internet company within the reach of U.S. law to help them disappear the MovieTube websites. Regardless of whether those sites are engaged in copyright infringement or not, this is a scary amount of power to confer on the movie studios. And it looks even worse at scale: if orders like this become the norm, Internet companies large and small will have to build infrastructure resembling the Great Firewall of China in order to comply.”

Of course that makes perfect sense. Because what could filmed-entertainment companies want more than a completely dysfunctional Internet and a “wall” of censorship? Filmmakers love censorship! And they certainly don’t want their products to be seen by the paying public via the growing number of legal streaming services that are entirely dependent upon a well-functioning Internet. Naturally, the MPAA is looking for a legal wooden shoe that it can wield to the ultimate sabotage of these distribution portals for studio products.  And in a related story, the Teamsters are going to lobby to defund highway maintenance.

But to put it less sarcastically, if Internet companies truly cannot help to foster a web ecosystem that honors certain rights, including intellectual property rights, without “building a Great Firewall of China,” then maybe they just suck at what they do.  Because, in the long run, we don’t need an Internet that remains the proverbial Wild West, we need one that matures into a vital component of a functioning civilization.

Anyway, if you want a proper (and admittedly calmer) legal analysis of the relief being sought by the studios in this case, I recommend this post by Terry Hart because he actually knows, y’know, legal stuff. I’m mostly being a smart-ass because this kind of fear-mongering is at least as offensive as it is repetitive.  Above all, I resent the tone the EFF consistently takes with regard to piracy — as though it’s some adolescent prank that doesn’t hurt anybody. I and others have cited volumes of data that proves piracy is a big, black-market business that causes tangible and multi-faceted harm to real people.  I will also add that during the anti-SOPA campaign, organizations like EFF, as well as the Googles of the world, implied in their populist messaging that they cared about ending piracy, but the bills SOPA and PIPA were too flawed.  Where in the last four years, have we seen any substantive indication that anyone speaking for the Internet was remotely sincere when they made those statements?

So, if as a general rule, any of EFF’s writers framed these articles by stipulating that a site like MovieTube is — and damn-well should be — illegal and deserves to be shut down, then by all means they should play the role of the public advocate they claim to be.  Instead, the organization’s thesaurus appears to favor repeating SOPA as often as possible and using calculated, provocative language, like the way Stoltz uses the word disappear as a verb to imply that MovieTube is akin to a political dissident being silenced by an authoritarian government. (If nothing else, this kind of rhetoric is just irresponsible in a world with real dissidents and real tyrants.)  For all the attorneys on staff at the EFF, they rarely seem to produce an even-toned, nuanced analysis for public consumption regarding cases of this nature.  I guess it’s just easier to be The Knights Who Say SOPA.  Maybe if somebody brings them a nice shrubbery, they’ll knock it off.

*To be fair, and at last count, the EFF had what I counted as over 40 attorneys spread among staff, board, special counsel, and advisors, which is not exactly the same as 40 staff attorneys.  But in the spirit of this post, suffice to say, they have a buttload of lawyers to keep coming up with the same talking point over and over.

NOTE:  Within an hour or so of TorrentFreak citing this article, I received comments from anonymous trolls with handles including Adolf Hitler and Osama Bin Laden calling me “faggot.”  I think the EFF should be proud to have such erudite supporters.  I don’t know what I was thinking by criticizing their rhetoric, which has clearly elevated the debate.

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