No, loss of access to information should not just be collateral damage: 10 years on from the SOPA-PIPA Internet blackout

Today marks 10 years since many major websites replaced their landing pages with black blocks or messages, in protest against efforts to pass laws in the United States that would have created dramatic new possibilities to block or otherwise damage websites accused of hosting copyright-infringing works.

The Stop Online Piracy Act and Protect Intellectual Property Acts were developed in response to fears that there were few ways to address piracy on websites outside of the United States. While domestic legislation (the Digital Millennium Copyright Act) did offer a means of calling for the removal of pirated content, the worry was that this was not doing the job.

To overcome this, the proposals focused on those aspects that could be more effectively controlled in the United States – the Domain Name System (DNS – which makes the links between the URLs we put in browser bars, and the series of numbers that takes you to content), search engines, advertisers and payment providers.

These tools were necessarily blunt – they could not focus on individual items of infringing content, but rather sites as a whole, regardless of how much legal content was there. Such sites would risk disappearing from search engine results, or simply not appearing when a user typed in the URL. Added to this was concern that meddling with the DNS could also create significant security questions.

In addition to this, the bills opened up the possibility not just for the US Attorney General to create a list of sites which would be subject to restrictions, with only vague definitions of which sites could be included. These rules would have applied to all sites, not even only the foreign-based sites which were the theoretical original target.

More worrying still, there would have been the possibility to seek court orders that would have prevented advertisers or payment providers from working with sites accused of infringement, without solid proof having been offered.

In short, while the bills may have led to the blocking of pirate sites or pirated content, it would likely have caused huge collateral damage, including to sites which in fact contain no pirated content at all. To turn this around, it would have had a huge impact on the possibilities open for people to create and share online, including, for example, repositories and digital libraries.

A post from the Electronic Frontier Foundation sets out what could have happened if the Bills had been passed, with sites hosting user-generated content slowly eliminated, and indeed only the best-funded sites ready to operate under the new rules.

Various events and activities are taking place around the world, for example organised by Creative Commons – take a look to find out more. But below are just a few lessons emerging from the events around PIPA and SOPA, as well as developments over the last ten years, which are relevant to libraries.

Access to information needs to be valued: a key problem with the PIPA and SOPA legislation was the failure to consider the negative impacts on access to information as a sufficiently serious problem to stop any earlier.

There are many claims shared about the value of the copyright industries, and assessments of the costs of piracy, but many fewer about the value of access to information itself. This is partly because it is far harder to calculate (without over-stating the accuracy of the value claims mentioned earlier), but also because it tends to be far more widely dispersed.

While there are calculations of the value of economic activities depending on fair use or other exceptions to copyright, these of course do not necessarily account for the broader benefits of access to learners, researchers, and indeed readers in general. More needs to be done to ensure that this access is given its due weight in decision-making.

Enforcement cannot ignore equilibrium or equitable process: PIPA and SOPA arguably represented a landmark in efforts to promote copyright enforcement, without regard to the costs of depriving people of access to information (as mentioned in the previous point), or indeed of whether there is any justification.

However, efforts to find new ways to enforce copyright law have continued, and alongside valid and proportionate approaches, there continue to be less discriminate ones. The creation of ‘watch lists’, based only on (untested) accusations made by individuals and companies, pressuring platforms into implementing imperfect upload filters, promoting the use of technological protection measures without consideration of whether they prevent legitimate uses – all represent efforts at enforcement without bothering to value access.

Such a disproportionate emphasis on enforcement, without respect for user rights, needs to be resisted, both in domestic policy, as well as in trade deals and international cooperation programmes.

Zero tolerance approaches have a chilling effect: by creating the possibility for sites to be ‘disappeared’ or otherwise penalised for hosting even only individual pieces of pirated content, SOPA and PIPA effectively promoted a zero-tolerance approach to copyright infringement.

While action in such situations may be justified in order to remove individual content, the risk of having entire websites taken down makes the cost of hosting infringing content, even inadvertently, so high as to dissuade many from even starting. Setting high fines or criminal penalties may have a similar impact.

This could be the case both for platforms used by libraries, as well as repositories run by libraries, where it is near to impossible to ensure that there is no infringing content at all there. Faced with this, the emergence of community-owned and run infrastructures risks being reversed and ended.

Decisions need to be global: there are two key reflections from the events around PIPA and SOPA. One is that it highlighted the general need for global internet governance, given that the tools available to individual countries are ill-suited to solving challenges associated with a global internet. The risk, in acting at the national level, is to splinter the internet between different jurisdictions (with standards often dictated by the biggest and richest players – arguably initially the United States, but now, Europe).

This, indeed, is why organisations like IFLA engage at the Internet Governance Forum and World Intellectual Property Organisation, as well as supporting regional engagement.

A connected concern is that the control of the US at the time over the Domain Name System meant that it had a unique possibility to interfere with a key part of the internet architecture. This, in turn, provides an argument for ensuring that this infrastructure is in global hands, not just that of any one player.

 

Of course, over the last ten years, more issues have emerged since then, including in particular the role of platforms, with business models which raise new questions, some of which may touch on copyright, but many of which belong more to the competition or anti-trust fields.

The size of platforms has meant that imposing rules on them risks becoming a proxy for addressing underlying problems, such as copyright infringement or hate-speech. Dislike and distrust of such platforms, in the light of their profits and practices, doubtless also helps in these efforts.  However, while certainly there can be no justification for business models based on promoting illegal content, this should not be a substitute for efforts to bring criminals to justice. There is also plenty else going on, around privacy, disinformation, and much more.

Nonetheless, the points set out all represent issues that were raised in the debates about SOPA and PIPA, ten years ago, which are arguably still with us.

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