Why We Should Still Be Wary of SOPA’s Section 201

If this bill was only about stopping overseas pirated sites, then why was Section 201 on streaming even in the bill?

Rick Webb

So the troubling anti-piracy bills Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA) are on the ropes, effectively dead. The celebrations have begun. It’s exciting. What a great, proud week for the internet, for democracy, and for fighting against money in our politics. But that doesn’t mean that we can let our guard down and overlook how the the bill’s defenders glossed over how SOPA and PIPA could be used to target U.S. citizens.

I share concerns with people like developer Marco Ament and journalist MG Seigler that this is just one victory in a larger battle. Furthermore, I echo my friend (and former investee) Matt Galligan’s comments that “I’d GLADLY pay for premium content but instead the only option I have is piracy.” This week, I’ve been trying to finish up watching season 2 of Boardwalk Empire. I pay for HBO through Time Warner NY. Because I use a TiVo, rather than the crappy DVR Time Warner foists upon me, I am unable to watch Boardwalk Empire on On Demand. Time Warner has no HBO Go. I pay something like $60 a month for HBO and I still can’t watch their shows.

(And I am appalled at MPAA head Chris Dodd’s blatant statements about money in politics when he says “Those who count on quote ‘Hollywood’ for support need to understand that this industry is watching very carefully who’s going to stand up for them when their job is at stake. Don’t ask me to write a check for you when you think your job is at risk and then don’t pay any attention to me when my job is at stake.” It’s disgusting.)

All that being said, I find it curious that most of the chatter around the web on SOPA and PIPA was around the admittedly nefarious firewall technology to block foreign sites. Indeed, when defending the bill, the RIAA focused on jobs and overseas pirating sites. What they failed to mention is Section 201: “Streaming Of Copyrighted Works In Violation Of Criminal Law.” This section is part of Part II of the bill, “Additional Enhancements to Combat Intellectual Property Theft.” Despite its title, the section deals with all types of downloading and transmission of files. And it is not limited to owners of infringing sites. It applies to all Americans. RIAA almost never mentioned the elevation of downloading by American citizens to a criminal offense. If this bill was only about stopping overseas pirated sites, then why was Section 201 even in the bill, or at least why was it not limited to the operators of these sites?

To back up a bit, we have seen over the last 10 years or so a massive litigation effort by RIAA against people who download files. The effort has seen a multitude of complications, embarrassments, discovery of grey areas and incidents of mistaken identity. To put it simply, a computer is not a person, and RIAA has been in many instances lax in confirming who was actually using the computer. RIAA has, thus, brought lawsuits against parents of children, the elderly who do not know how to use their computerspeople who don’t even own computers and even dead people. It’s been stressful and costly for many.

RIAA has pulled back on this, mainly due to the adverse PR fallout of the lawsuits. Part II of SOPA, of course, would have given them convenient cover. The civil suits were bad enough, but now RIAA sought to have the government do their dirty work for them. Previously, none of these parents or grandmothers were liable to go to jail. With SOPA, that would have no longer been the case. “How can you be upset about your grandmother? It’s not us that’s suing them, it’s the government. Granny committed a federal offense.” Read the bill.

(I should also mention I am the owner of a record label. Even in that capacity, RIAA is a joke. It does not speak for me, it does not care about small, independent record labels. Indeed, RIAA is often completely antithetical to the interests of content producers.)

Now, it’s easy to think that the law only covers those who have done a ton of downloading. The numbers used in Section 201 are one or more works that retails for over $1,000 or isn’t out commercially yet in the United States. One import CD or DVD and you would be in violation.

For works out already in the U.S., the number is 10 or more.  The problem here is that the bill makes no accommodation for the way that file sharing actually works. If you run BitTorrent, by default you are uploading as well as downloading. That’s the way it works. It’s not hard to accidentally share an entire folder of legitimately obtained music. Little bits and pieces of every album on a computer may have been uploaded. The law does not address this. If your kid or grandkid puts a BitTorrent app on your computer and leaves it running, you may well be breaking the law. Right now, you might end up with a civil suit. With SOPA, you might have ended up in jail.

Sure, the law also says “For purposes of this subsection, evidence of reproduction, distribution, or public performance of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.” That should protect you, right? How can we know? First, they do not exclude the presence of an application such as BitTorrent being on your computer, even though it may have legitimate use. It’s not unreasonable to assume that could be used as evidence of will. Your bandwidth uses could also implicate you. Who knows. It’s a wide open field. More worryingly, the criminal charge may well go to juries. Juries that may not know how any of this works.

It’s not clear to me why any of this is needed. It’s not clear to me why we need to make this even more draconian. A meme has been going around the internet: “Under SOPA, you could get 5 years for uploading a Michael Jackson song, one year more than the doctor who killed him.” It sounds insane, but it is true.

On a recent segment of the Chris Hayes show, Mr. Hayes interviewed NBC Universal VP and General Counsel Rick Cotton. Mr. Cotton was bordering on abusive in his relentless insistence that anyone who read the bill would see that SOPA was targeting oversees sites. “What this legislation is addressing are websites, wholesale devoted to illegal activities that if they were in the United States would be subject to criminal prosecution and to shutdown. This legislation would not effect a single site in the United States…. And it is totally wrong to say that a single post or a SMALL amount of legitimate activity would be threatened by this legislation.” Mr. Cotton completely failed to mention Part II of the bill, except by alluding, broadly, to Part II and implying you’ll be fine. Mr. Cotton goes on to say “This legislation is devoted exclusively to foreign sites.”

This is a lie. Cotton was willfully fudging, trying to say that out of all the websites, the legislation only applied to foreign ones. But an entire additional section of that bill referred to US citizens. And we should be wary. Why We Should Still Be Wary of SOPA’s Section 201