SOPA may have gone but there are still laws and policies which impose US standards on the rest of the world, says Eric Doyle
President Barack Obama will be relieved that the death throes of the proposed Stop Online Piracy Act (SOPA) copyright act have removed him from the uncomfortable position of being between the rock’n’roll of Silicon Valley and the hard players of Hollywood. Faced with elections in November, he was well aware that SOPA and the Protect IP Act (PIPA) threatened to split his support among the two most influential forces in California.
Consequently, the President appeared to be trying to put off his walk along the piracy gangplank by delaying the political processes. “Keep ‘em guessing” seemed to be the policy that would see him through the stump , the US equivalent of UK hustings. It looks like SOPA has fallen into the abyss but it will surely rise again in some modified form.
SOPA – dead or alive
The saga of the end of SOPA started on Saturday when a blog on the We The People site was posted by three influential members of the US government staff. They wrote: “While we believe that online piracy by foreign Websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.”
The responders to the US SOPA petition were Howard Schmidt, the Obama administration’s cyber-security co-ordinator; Aneesh Chopra, federal CTO for the United States; and Victoria Espinel, the US intellectual property (IP) enforcement co-ordinator. Such high-level criticism led to the Act’s sponsor Lamar Smith withdrawing the controversial requirement for ISPs to block infringing Websites. But the final blow was delivered by Republican Eric Cantor, Majority Leader in the House (Congress), when he announced all SOPA action would cease.
SOPA was highly controversial because it was loosely cast and its intention was to prevent IP theft, particularly relating to film and music. It was aimed at “foreign” sites that host or promote IP theft by offering copyrighted material without paying royalties to the originators, or for providing links to such material.
It stands as an example of governments’ failure to understand the nature of the World Wide Web resulting in them using a sledgehammer to knock home a panel pin. Pushed by the “Hollywood studios” (a term that covers primarily the film and music industries), politicians were bending over backwards to fulfill their every whim. The consequence was a Draconian draft that made the equally-powerful Silicon Valley set angry.
Under the original proposal, sites like Google whose searches reveal links to copyright-infringing sites could theoretically have been blocked or, at least, have to block searches to offending sites. This caused an outburst from Google against SOPA – a call which was taken up by other Websites and the threat of mass blackouts of services in protest.
The root of the problem is that the US is not only concerned about what it sees as a misuse of the Internet but also a deeply ingrained sense that it still “owns” the Web. When the original Defense Advanced Research Projects Agency (DARPA) handed over the military internetworking system that became the Internet to the world, the US theoretically gave up all controlling rights.
Ownership of the Internet
The problem is that the Internet is still largely controlled by the US and any actions taken under SOPA would have blocked services the US of which did not approve from the rest of the world. Governments have to come to terms with the fact that the Internet, like their internal legal systems, has boundaries. Even the Chinese government’s stranglehold on what its citizens can access is limited to the Chinese state but SOPA, in its latest form would affect the world.
This is something the US does not seem to grasp. The laws it passes must not limit the human rights of other countries and influence their laws. Like 19th century Britain, the US sees itself as the “policeman of the world” using its financial might to push its views on other nations.
Almost 10 years ago, the US requested the extradition of Gary McKinnon, a self-confessed hacker who penetrated various American government sites between 2001 and 2002. The problem is that there is a dispute over where the actual crime took place. McKinnon was in the UK and but the sites he attacked were in the US. Should it be the UK legal system or the US system that judges the case?
Similarly, and perhaps more controversially, Julian Assange is being sought for extradition to face charges relating to the WikiLeaks disclosures of US government emails. He did not steal the messages but he decided to publish the embarrassing information. The US claims that this put lives at risk but there are no reports of anything other than diplomatic compromises resulting from these disclosures.
Web of litigation
Now, we have the case of Richard O’Dwyer (pictured) who ran a links site, TVShack, and has just been marked for extradition. The likelihood, as in the McKinnon and Assange cases, is that the judicial system will have to deal with escalated appeals against the decision. O’Dwyer is probably the most difficult of the cases to judge because his site, currently under the control of the US government, offered links to UK material as well as US films and TV programmes. It has also been singled-out from at least ten other UK sites offering similar services.
O’Dwyer, a Sheffield student, did not host any illegal downloads on his site but merely offered links to where downloads could be found. The same sites could be discovered with Google or any other search engine though, admittedly, O’Dwyer’s syte is more obviously directed to copyright infringement. The argument remains that, if a crime was indeed committed, it was executed on British soil and should surely be dealt with under British law.
There is a deeper issue of the one-sided extradition agreement that exists between the UK and the US because the same would not be true of a US citizen offending the UK in a similar way.
The question of IP infringement is a hot potato which no-one knows how to grasp. Rather than a knee-jerk reaction, the laws need careful thought. The UK government is in disarray when it comes to Internet regulation and Ofcom is notably uncomfortable with the Digital Economy Act (DEA), our more liberal version of SOPA.
It is a battle between personal freedom versus corporate interests. In the US, it is likely that the corporates will win through in the end but the endgame is not so clear-cut in the UK and the European Union. The basic concern is how much US law will shape, or impinge upon, European freedoms.