The MegaUpload case shows the US government can already enforce its copyright abroad. The world is asking why SOPA was necessary, says Wayne Rash
The week when Wikipedia’s English edition went dark, it was only the most visible sign of a great level of global concern about the attempts by US lawmakers to assert their views of copyright law on the rest of the world. One of the provisions of the two proposed laws would give judges in the United States the power to authorize US law enforcement officers to effectively take down foreign websites that were alleged to contain pirated content.
Under the proposed legislation, the method of taking these sites offline varies. In some cases, a judge could order search engines to stop serving up results from allegedly offending sites. In other cases, payment processing sites could be ordered to stop processing payments, which would kill them just as effectively. Worse, halting the payment processing action would only require an assertion by someone who claimed to be a copyright holder who issued a letter giving five days’ warning. No judicial review would be required.
Why is the US imposing its laws abroad?
I learned about the depths of these concerns during a series of appearances on foreign talk shows. In conversations with journalists involved with Al Jazeera’s “Inside Story” show there were questions about why the entire US legal system was catering to a relatively small set of interests. On Russia Today’s “Crosstalk” program, there were similar questions. But while preparing for the show, I heard many concerns about why the United States thought it should be able to impose its laws on foreign countries.
Part of the reason for concern is that the United States and other countries already have treaties in place regarding copyrights, and those treaties work, as was clearly shown in the takedown of the Megaupload site on 19 Jan. In that massive bust, the FBI along with authorities from a number of other countries detained the principals of the site and took the site and all of its related domains offline.
So the obvious question arises. If this capability already exists, why do we need SOPA and PIPA? The reason that was given publicly is that sometimes it’s hard to actually find the people responsible for rogue sites. But it seems that after some investigation, law enforcement was able to coordinate the action over several countries on multiple continents. Perhaps this would have been able to take place more easily with the Stop Online Piracy Act (SOPA) or Protect IP Act (PIPA) in place, but clearly it’s possible without them.
This isn’t the first time such a coordinated arrest has taken place, although the Megaupload bust was by far the biggest. But what else were the backers of SOPA and PIPA looking for? For one thing, they don’t want to have to wait for a year while the whole thing is investigated and coordinated. They want a site that they think is handling pirated material taken down in days.
The burden of proof
But the problem with all of these proposals is that they lack any requirement for proof. In some cases, a court order is required, but I don’t think it’s a secret that some judges can be persuaded to issue such an order on tenuous evidence. In other cases under the proposed legislation, it only requires an assertion. Worse, the site that would be taken down would have little legal redress. Even if it turned out that the complaint was false, they’d probably be out of business.
In addition to these issues, there is the fact that these laws were proposing to take these actions against a foreign country. Suppose a complaint is made in the United States, about material which isn’t violating the copyright law in the other country? Copyright laws vary from one country to the next and while signatories of copyright conventions agree to honor each other’s laws, not every country is a signatory.
One of the countries that is regularly accused of tolerating piracy is China, and while the Chinese government does make copyright-related arrests from time to time, there’s a lot of piracy that goes on there. So does this mean that some judge in the US can effectively wage economic warfare on Chinese interests? The way those proposed laws are written, that could happen. And while I realise that the Chinese government already censors US sites, I have a feeling that the State Department might want to have input.
Fortunately, SOPA and PIPA lost much of their support in Congress in the wake of the 18 January Internet protest and are virtually dead, although some of the bills’ supporters haven’t figured that out yet. Another law, the Online Protection and Enforcement of Digital Trade Act (OPEN) was introduced on 18 January, the day that Wikipedia and other sites went dark. This bill is said to have been developed in cooperation with the Internet community and would work through the International Trade Commission. The OPEN bill already has more sponsors than SOPA or PIPA, and seems to have a better chance of passage.
The good news about the OPEN bill is that it avoids the unilateral attacks on foreign interests that the previous bills contained. But there are still questions. The most obvious is whether the lobbyists from the film and music industries will support the bill. The second is whether the bill has any chance of passage in a contentious and highly partisan election year. But at least OPEN doesn’t appear to wage open trade warfare on other countries, which alone is a major improvement. And best of all, two laws that we didn’t need, SOPA and PIPA, are dead.