Friday, January 20, 2012

how your kids were taught to hate SOPA

Post-blackout analysis continues today with a general recognition that US legislators have been scared away from legislating, and a new approach to attacking the problem of online piracy will have to be designed.

You can see this as something anywhere on the spectrum from great victory for grassroots democracy to needless waste of time and legislative effort. My view should be apparent.

Before I leave the topic for now, though, there is one aspect of the this blackout story that continues to nag.

How the message was spread that SOPA and PIPA were apparently so threatening to humankind.

Google and Wikipedia, among a number of other prominent web-based companies (mostly for-profit... mostly for obscene levels of profit), have permanently handed in their neutrality cards and made it perfectly clear that they will do everything in their power to influence your political opinions.

Fair enough for Google, I suppose. I don't know anyone outside the free-culture fanatics club who still believes Google has only our best interests at heart. How Wikipedians deal with their own suddenly unmasked bias will be interesting to watch. If Stephen Colbert has not yet coined the term factiness, I offer it to him free of charge.

Very sadly, the popular teaching site Khan Academy also got into the act on Wednesday. Who does not love the idea of  Khan's short, engaging, simplifying video lessons for kids and adult learners on subjects as broad as simple arithmetics to advanced physics? During the blackout, we learned that Khan had uploaded a special lesson on SOPA. I encourage everyone to go watch it here - but as you watch it, I would ask that you apply as fine a legal filter as you can muster. To me, there is something simply horrifying in the lack of legal nuance on display in Khan's anti-SOPA lesson -- and let's not fool ourselves, this is not a lesson about specific legislation; it is teaching against specific legislation that reflects an undisclosed worldview.

Khan very engagingly draws out a diagram of how SOPA is intended to work. He then goes into the language of the proposed bill to show fearful consequences. Those consequences, he emphasizes again and again could be as bad as someone shutting down YouTube or Facebook or any other prominent American site "on a whim."

Here's how he does it. Have a look at the legislative language quoted below, especially the words in red text:

(1) DEDICATED TO THEFT OF U.S. PROPERTY- An `Internet site is dedicated to theft of U.S. property' if--

(i) the U.S.-directed site is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates--
As though breaking down the reasoning behind 2 + 2 = 4, Khan explains that since YouTube and Facebook can be seen as sometimes enabling or facilitating copyright infringement, they would qualify as "dedicated to theft of U.S. property," and QED they could be shut down ... on a whim.

Teach your children well.

Let's look at that wording again with a slightly different emphasis:

(i) the U.S.-directed site is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates--
Who believes YouTube or Facebook are primarily designed or operated for the purpose of, have only limited purpose or use other than, or are marketed by their operators to steal U.S. property? Raise your hands.

I thought not.


Now, none of these examples of naked bias are particularly bad developments in my view. I hope everyone learns a lot from what has happened this week. I hope high school students everywhere now realize they need to ruthlessly question everything they read on Wikipedia and everything they watch on Khan Academy. I hope web searchers wonder how Google might just be filtering search results before they click I'm Feeling Lucky.

SOPA is dead, for now, and new legislation will have to be designed. In the meantime, I hope more folks start wondering just how much of that scary SOPA story we were told this week was actually true.

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Jawed Karim said...

I'm not sure if you're a lawyer, but your attempt to parse SOPA is plainly wrong. Few would argue that a site like Youtube enables or facilitates infringement. Like most sites involving user postings, it does.

The question is whether the site "is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator." A site such as Youtube would qualify here too. It doesn't need to meet all the conditions, only one will suffice. Is the site operated for the purpose of enabling infringement? That's exactly what Viacom says in its lawsuit against the company.

There are lots of other problems too. The circumvention rules are just awful as they definitely capture the same programs used to circumvent Chinese censorship. Not a good idea.

John said...

Jawed Karim,

I guess you missed my bio beside the posting. I'm not a lawyer. Are you?

You seem to be disagreeing with me by agreeing with what I wrote about the legal language. My point is not whether YouTube or Facebook enable or facilitate, but whether or not these beloved UGC and social media sites are "primarily designed or operated" to do so. They are not.

The failure of the Viacom suit kind of proves my point. Viacom did not argue that Google or Youtube were primarily designed to enable infringement, just that they were well aware of infringement. That remains true, as does the safe harbor provision allowing Goutuboogle to unintentionally host infringements as long as they respond to valid takedown notices. Facts like that might have been helpful for people to know as they made up their minds about SOPA. Those facts did not appear in the Khan lesson video.

There is nothing wrong with expecting multi-billion dollar corporations to properly regulate their behaviour.

And I am not saying the legislation didn't have problems. I'm saying give people the real facts when you are asking them to be aware - especially if you are a supposedly neutral encyclopedia, and double extra special especially if you are a teacher of some kind... say, a law professor, or a prominent internet sage.

Jawed Karim said...

No, Viacom did not just argue that Youtube was aware of infringement.

"YouTube 'welcomed' infringement in order to build traffic on its site. In doing so, it violated the law. Actively encouraging and facilitating rampant infringement is clearly illegal and is not protected by the DMCA – a law intended to provide safe harbor against liability where online services providers take reasonable steps to prevent infringement."

This is the same language as SOPA and explains why many were concerned about its implications.

John said...


Viacom should have hired you to represent them in their lawsuit.

If Youtube did intentionally facilitate infringement then they should have lost their challenge. The fact that they did not lose, and in the US, is pretty much airtight proof that an even more difficult test - that they are primarily designed for that purpose - would also fail.

The so many who were concerned, were concerned in error.

I rest my case.

But to be clear, if under a SOPA type law, someone were to make a good case against YouTube, proving they do consider infringement part of their primary design, I would be happy to see them shut down, as should all people who respect the rule of law. Humanity survived and developed for quite a number of years without Youtube. I'm sure we'd carry on just fine without it.

A note to anonymous posters - if you can't be bothered to even try and come up with a convincing pseudonym, don't bother commenting. You won't be published.

Deuce said...


I guess it boils down to whether you trust Big Media to act in good faith. Nothing in their behavior over the last decade as concerns file sharing would convince me that they would not abuse their position and power to not only protect their intellectual property rights, but also stifle competition and, in general, use legislative power and the U.S.'s dominance globally to prop up a business model built on artificial scarcity that's been a sputtering failure for a decade.

The Canadian version of the RIAA (The CRIA) recently had an enormous judgement against them for, you guessed it, violating the IP rights of artists as they used their songs without their permission, with no legal right to do so, on compilations. Using the same math these media cartels use on file sharers, the damage was calculated to be $6 billion! Of course, the CRIA settled with the artists for $45 million back in July. Lucky for them the artists were reasonable.

Piracy should be stopped, I will not argue there. However, the LAST people that should be given the authority or means to fight it is these clowns. They've already demonstrated that they are not trustworthy. Set up a PUBLIC OFFICE that handles this, with appropriate due process provisions as meeting with the concept of innocence until proven guilty and I'm right there with you. But absolutely, positively, under no circumstances, can we allow these abusive jerkwads to be the ones at the switch.

Greg S. said...

While "primarily designed or operated for the purpose of" is far too broad. Megaupload was not designed to enable piracy... it was designed to host and share your files...even within the terms of use, to share the files, you are supposed to have the rights that permit you to share. So by your logic, since megaupload wasn't designed to do this, and certainly to enable piracy was not their PRIMARY design, or their operation.

The problem with this wording is it is simply too broad. "Primarily designed" come down to the interpretation [read: politic value] of the court. There is far too great a potential for abuse - especially when the driving forces behind this legislation is not the people, but the multi-billion dollar corporations.

Government of the people, by the people, for the people... That's what it was supposed to be. Now it is Government of the people, by the politicians, for the corporations/lobbyists.

Simply, the potential for abuse is far too great and that is why this legislation should be trashed.

John said...

Greg S.,

Thanks for your comment. I respectfully disagree with your viewpoint.

An organized, criminal outfit like MegaUpload hiding behind insincere terms of use should never be able to evade the law. In the case of MegaUpload, which involves complicated international cooperation and probably a huge budget for enforcement, the attempt to bring it down would never have been started if clear evidence were not presented of their bad faith.

You can continue to disagree, as I'm sure will Mr. Dotcom, but now it is up to the courts - and you can't get more by the people for the people than a fair trial in court.

For those continuing to disagree with my view of the Khan video, I note that others agree with my interpretation:

adamundefined said...

Humanity survived and developed for quite a number of years without copyright law too. By your logic maybe we should not be too concerned with it. Most of the proponents for SOPA/PIPA are "mostly for-profit... mostly for obscene levels of profit" and are far from neutral in this case so why is it such a problem if Google/Wikipedia/others express their opinion of the bill?

John said...


Please don't presume where my logic can take you. If you have your own point to make here, make it. Don't try to twist my words in your favour.

I believe it is a human value to respect the work and property of other's minds. The UN agrees with me, and has incorporated this idea into its Universal Declaration of Human Rights. Whether actual statutes have existed or not, copyright in one form or another has been an undeniable benefit to culture.

I do not claim neutrality, and neither do the large content industries. We are concerned with protecting our individual rights (as respected by the UN - see above).

My point was, and remains, that Google, Wikipedia and Khan have removed a mask of neutrality that they happily wore. In the case of Wikipedia and Khan, I think it was a fatal error to do so. Neutrality is central to their projects.

adamundefined said...

I am usually very opposed to the viewpoints of MPAA/RIAA/other large content industries but I very much believe copyright is essential and a positive thing. Where I disagree is usually on the extent and strength of copyright. I think copyright is only beneficial to society as a whole when it is balanced with fair dealing/fair use rights and a reasonably limited term length.

I think Google/Wikipedia have every right, and responsibility, to speak out when legislation that is proposed that could threaten their existence.

Jason Preville said...

I think my problem with the 2 bills is the cost both to the government and Tech businesses as a whole when you consider that impact would likely be close to nil
I think the Forbes puts it best,"The data simply doesn’t suggest that piracy is causing any serious economic harm to the US economy or the entertainment industry. Heavy-handed approaches to preventing piracy are wrong-headed and reveal a dangerous level of short-term thinking on the part of both lawmakers and industry leaders. Worse, the impetus to crack down on piracy is based largely on industry data that wildly inflates the problem"
Seems like a large waste of time and money.

John said...


Your mention of balance and a "reasonable" length of term suggests an openness to good faith discussion and negotiation on those points.

Unfortunately, you follow this with the same overblown drama I've been remarking on. Nothing in SOPA or PIPA could be intepreted by any reasonable person (who has read the bills) as threatening to the existence of either Google or Wikipedia. That is simply absurd. That suggestions such as this have become the core talking points of the current debate is a developnment we should all examine with great care and anxiety.

Why aren't we talking about the realistic middle instead of the absurd edges?

John said...


Not sure what switch you're talking about, but the bills I read contained due process and did not hand any arbitrary power ovetr to anyone.

The standard RIAA/CRIA hating won't get any traction on my blog. I am arguing for individual rights. There are plenty of places on the Internet where you can go to blame the entertainment industry for everything that's wrong with the world today. Leave it at the door, please.

adamundefined said...

I'm all for reasonable discussion but the major content industries are certainly no stranger to "overblown drama". They freaked out over the player piano, radio, VCR, cassette tape, MP3 player. There are also many studies that question all the numbers put forth as "cost of piracy". With such a history I take all arguments from the content industries with a grain of salt. They certainly would have their own bottom line as their priority rather than the public good. That is there prerogative, but to keep a balance public domain and usage rights I think there has to be counter-arguments.

John said...


Thanks for your comment.

The cost to tech and government argument is a red herring, and it would terrify me if anyone took it seriously. If something is against the law, there is generally a good reason for it, and it generally has to do with morality. This is as true for copyright infringement as it is for grand theft. These things are wrong not because it would not be all that expensive to enforce them. They're wrong because they're wrong.

The claim by free culture about there being no proof piracy hurts rightsholders lives in the same house as your "it's too expensive" argument. First of all, there's plenty of respected opinion out there indicating real economic damage. I'll quote author Chris Ruen on this point:

"The only claim more ridiculous than the RIAA’s mid-2000s argument, that each pirated album equals a lost sale, is the claim that no pirated copies equal lost sales. The search for objective proof for either claim is a futile one, cursed by hypotheticals and dynamic consumption patterns that are impossible to adequately measure."

The difference of course, is that RIAA is attempting to justify holding onto their property, while free culture is attempting to justify taking someone else's property.

Call them greedy and too controlling all you want. If you really hate the way the record companies do business, ignore them completely. Theft is not justified by inconvenience or expense.

John said...


See my answer to Jason above.

I've heard the free culture rhetoric of player pianos and VCR a million times. So what? It is the content industry's right to have their bottom line as a priority. They produce the content.

The complaints about VCRs and player pianos had the desired effect. They produced economic arrangements and regulatory mechanisms that allowed primary control to remain in the hands of rightsholders without in any way disrupting the new tech. The same needs to be done now.

Jason Preville said...

John, all due respect I make no claim to free culture, this is simple economics. There is no evidence of harm, there seems more of of little to no harm. And we are talking about enforcing existing laws, we are talking about making new laws that will have little effect.
There always needs to be a balance between enforcement and cost or else we would have many more policemen walking the streets than we have or every single item in a store would have plastic security devices attached to them rather than just the expensive ones.
Surely actual shoplifting costs more to the American public than infringement does that mean we should fight it at any cost?
No, reason always needs a place at the table.

John said...


After years of arguing on these pioints, I have no patience for extreme claims like "there is no eveidence piracy harms sales."

Really? You're saying in your heart of hearts you know that no-one has ever decided not to buy a song or a movie because they'd just discovered a way to get it for free? What an exhausting amount of emotional work must go into such a justification.

I'm not saying everyone needs to flagelate themselves for jumping on the digital download bandwagon. When the gate falls down, people tend to walk onto private property - there's some essential human nature at work there. What I'm saying is that we don't have to make excuses for this behaviour (oh, there's no peer-reviewed, third party evidence that not respecting your gate harms you), nor do we have to accept it as a social norm. It's wrong, full stop. There is a social value in enforcing that fact.

Then again, if you insist on needing evuidence, there is plenty of it. That it is regualrly ignored by excuse-makers is a big part of the problem:

"after Limewire was shut down by a federal court, “The spike in sales was immediate, noticeable and lasting.”"

"These effects are likely short term due to the one-off nature of litigation. More lasting effect must come from improved enforcement through legislation."

John said...

Oh, and just quickly - if I didn't make it clear earlier - my postings on this blog are not an open invitation to endless argument. I'm done with that.

When I feel I've made my point, and when I feel the comments have become repetitious, I will move on. I have many, many more important things to do with my time.

John Colbert said...

John, hope you are well.
I understand your frustration my friend. The Only problem I had with the new laws is that they were too easily circumvented. However I truly believed that these were important first steps in what is likely a long road to get to where we need to be.
This is a set back that will eventually be overcome with hard work and apparently uncommon sense.
"You may have to fight a battle more than once to win it."
Margaret Thatcher

Jason Preville said...

John totally agree with you that it's wrong, but I think we need a strong cost and fact based analysis.
That's it, no justification, I'm just fiscally conservative by nature.

Greg S. said...

@John: The problem I see it, by using the same logic, gun manufacturers could be held to the same standard. Are gun manufacturers responsible for how their tools are use? If so, every crime that is committed with a gun, are you saying that the manufacture should be responsible?

Other sites link to potential infringing content - look at google, yahoo, bing, etc., or any other search or meta-search engine.

In this take down, what about the legitimate users that used the site for it's intended purpose, with their own legal shareable files? Will those users be compensated appropriately, in the same way that the MP/RIAA are being compensated? If not, then why not?

While we are at it, why not shut down BIC, Pentel, Papermate, Stadler, etc [yes, pen/pencil manufactures], because those tools can be used to write hate-speech or be used to infringe on someones IP (intellectual property) by copying something?

Yes, perhaps the example is taken to the absurd, but the tool itself is not inherently good or evil.

There are already procedures in place to deal with content that is being infringed upon - the DCMA takes care of that. Did the MP/RIAA use those steps? Did they take the time to issues the take-down orders to the appropriate parties (aka, the user). Did Megaupload have a history of non-compliance with DMCA orders? In other words, how many were issued and how many were ignored?

Was there infringing content hosted on mega? Yes. Did mega encourage or outright say "upload your infringing content here?" I would find that very hard to believe.

Can/should they be responsible for the content placed on their servers by their users that violated the sites terms of services? Answer that one carefully - it is a slippery slope.

What is good for the goose, is good for the gander.

John said...

Greg S.,

Any law can be projected into extremes. That is why we, and the Americans, have due process.

It is simply exhausting to be expected to justify reasonable complaints in the face of absurd possible outcomes. Do people REALLY believe Hollywood wants to shut down Google or implement a fascist corporate censorship protocol.

Society does not win anything when reasonable people give up on discussion because they are tired of answering ridiculous questions.

And on that note...

Greg S. said...

We've pretty much have to agree to disagree.

Simply, SOPA/PIPA are loosely and poorly written piece of legislation, that has specific self-serving agenda, with tremendous potential for abuse - what has been done with mega-upload is an example of that abuse. It is not going after the infringers - megaupload is not the infringer. Certain specific infringing users of megaupload are the problem.

Due process is a very subjective term, especially in this context. None of the legitimate users of megaupload were afforded "due process" with their data. And as it stands, they are pretty much out of luck.

thanks for the discussion.

John said...

Thanks for your perspective Greg S.,

I'm not buying it, but thanks. In my opinion MegaUpload was primarily designed to profit from infringement and will now attempt to hide behind a layer of legitimate use. This is the heart of the problem that SOPA tried to address.

Unfortunately, I notice that MegaUpload and its like are already being aided in this deceptive defense by prominent members of free culture.

That legitimate filesharers are being used by criminal enterprises should make them mad at the criminals, not at the law. It should also make them think twice before storing their legitimate media content in unsavory corners of the Internet. Due process does not exist to protect us from our own silly mistakes.

John Colbert said...

I was in Washington on business for the last three days. You might imagine the chatter. Let the free culture crowd put whatever veneer they want on this. A frequently heard comment, Megaupload was the largest reservoir of infringing content on the web.
We may get to see a few people squirm as they try to distance themselves. Running from the light?

John said...

John Colbert,

The distancing began almost immediately. Here's an example from the academy:

"No, no, no, free culture isn't like what MegaUpload was doing. Oh, and also, was what they were doing really that bad?"


Very predictable.

Greg S. said...

It looks like we both come from different premises. I view megaupload from the premise of being a tool and where a tool itself cannot be inherently good or bad. Good/bad (or the spectrum anywhere in between) are human-like attributes being applied to a non-human object. While profit from the use of the tool from infringing content did occur, I'm still not convinced that was the initial intent of the site - a byproduct, or even welcome byproduct, sure, but not the original intent.

Whilst your starting premise starts that the tool was designed to make profit from illegal/infringing content. Again I'm not convinced.

So understandably, we both logically flow to two very different conclusions. As mentioned before, we must agree to disagree.

On another note, this has obviously created concern for Google, Bing, et al. It is interesting that now very limited advertising results appears on any search terms. Interesting how advertising (read: PROFIT) has been shifted. Up until this megaupload incident, most search results were inundated with significant amounts of ads. Now they are virtually non-existant. I'm sure the search engine providers are feeling this on their bottom lines, let alone the vendors that would normally received business from them.

There are always unintended consequences with such actions. Often the one that are so adamant on their goal, they fail to notice the wake of destruction left behind in achieving their goal.

John said...

Greg S.,

You will have to pardon me for NOT seeing Google et al being more careful where they draw advertising revenue from as a "wake of destruction."

Responsible corporate citizenship is how I see it.