Free speech vs. Internet Piracy
By Jim Surber
Jan. 19, 2012 

I don’t think I will ever be fully accustomed to acronyms, but there are two recent ones that provide an interesting study in the complexities of our modern society. What does it take for some of the major Internet websites to go black, and lose money, for a day of protest? The answer is SOPA and PIPA.

 The Stop Online Piracy Act which is now pending in the U.S. House of Representatives, and the Protect Intellectual Property Act, which is a companion bill now pending in the Senate, are the proposals inciting the virtual protests. Oddly enough, both bills are designed to stop offshore websites from selling illegal content, like pirated Hollywood movies and fake Viagra. Absolutely nobody disputes that both bills seek worthy goals, but many mistrust that their passage would give the government and holders of copyrights too much control over the worldwide web. 

The concerns are something like this: If the U.S. Justice Department, or any copyright holder, had reason to believe a site was directing users to pirated materials or media, they would file suit in court. A judge could provide different remedies depending upon who is doing the complaining. The judge could order a service provider to cut off access to a site, or a search engine could be ordered to delete links to an infringing site. The goal would be to starve the offending sites by eliminating the web traffic that keeps them in business. 

Backers of these bills say this is justified because the current situation is simply a rampant, un-policed theft of American goods and products. The U.S. Chamber of Commerce contends that these “rogue” sites receive hundreds of millions of clicks each year, at a huge disservice to the American economy. One estimate suggests that the illegal sites rob over $130 billion each year from legitimate businesses. 

The overriding question is whether the government will be given power to censor the web if these bills are passed. First Amendment scholars argue that free speech would be stopped by giving private parties the power to cripple sites that allegedly, but not conclusively, steal copyrighted material. They contend that a simple complaint filing would exert pressure on the Internet system to blacklist an accused site. They further argue that new powers would be given to the feds to go after sites for political reasons. 

The backers say this is nonsense, because the legislation is narrowly crafted to target offshore sites “dedicated to the theft of U.S. property.” They accuse the opponents of inciting fear and hysteria in order to maintain the status quo. 

Of course, the anti-piracy bills’ biggest supporters are those companies that are hit the hardest by the online piracy, like the makers of music and movies. We have all seen how the Internet has been economically devastating to Hollywood and the recording studios with the explosion of illegal copying and sharing of media. Efforts have been made for years to push Congress to hold Internet servers more accountable for the illegal content that flows through them. Also, as expected, the bills are heavily backed by drug companies and the makers of luxury products who want to strangle the huge markets for knockoff goods. 

The bills’ biggest opponents are formidable and include Google, EBay and Wikipedia. They have all been actively warning users for over a year, and have since been joined by tech bloggers and Internet activists. 

Ironically, in spite of the current state of partisan polarization in Congress, the bills are something that both parties can agree on. Even so, backers have not begun to celebrate because the opponents are equally capable of exerting big-money influence. After all, it is the money that will ultimately control the fate of both bills. 

The most fascinating aspect of this controversy is its direct connection to the First Amendment and free speech. It would seem that, if passed, the law would give private parties the power to suppress speech without prior notice and a judicial hearing. In other words, a complaining party could stop online advertisers or credit card processors from doing business with a particular website, simply by filing a unilateral notice accusing the site of being “dedicated to theft of U.S. property.” The likelihood of inevitable abuse should be obvious. 

The backers’ argument, in favor of the bills, is that opponents want to keep illegal distribution of software, media and products as easy as possible. 

What all this boils down to is that the greatest danger in this proposed legislation is in its potential. Many things have sprung from the “Pandora’s Box” that was opened with the creation of the Internet. It is a medium that transcends national boundaries, culture, race, religion and class.  

The effects of a Supreme Court ruling that political spending is protected as free speech by the First Amendment have been exhibited in the current defamatory political ads launched among the Republican candidates running for President. Each candidate states that he has no control over the tone and content, but each ad is crafted to debase one or more opponents while praising one. 

Corporate funding of independent political broadcasts in candidate elections cannot now be limited, because corporations are “people.” This proposition, when linked with one candidate who has terminated corporations in the past, has enabled one critic to accuse him of being a “serial murderer.” Though the allegation is tongue-in-cheek, there is still truth if only to point out the absurdity. We will surely all be fed-up with these types of ads long before this November’s election rolls around.

Probably the best decision in this complex matter is to heed a few simple words attributed to Benjamin Franklin. Ben never had the chance to watch a pirated movie, surf the web, or to buy Viagra without a prescription. Still, the words are relevant: “Those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one.” 

The freedoms and protections of this nation’s citizens have already endured many challenges, but still continue to survive. While it is certain that some people will always figure out ways to exploit or take advantage of new technologies, this should not allow a compromise, either directly or indirectly, of the basic freedoms of U.S. citizens.