The kittens kicked ass on Hollywood, and Hollywood, like every frustrated bully, is sounding like a sore loser. Big liberals that they are, the Big Wheels of LA of course thought they'd paid in advance to grease SOPA's passage through the legislative process. The MPAA had put silver-haired ex-Senator Christopher Dodd in position as the head of the Organization last year, replacing silver-haired Jack Valenti, with a nice post-Senatorial salary of $1.3 Million per year.
Pity the fool, though, who stands between term-paper-pressured students and their Wikipedia. The Wikipedia / Reddit blackout, backed with Google's black banner campaign, knocked what Dodd had no doubt assured the Big Wheels of the motion picture industry was a lock, right out of the winner's circle.
The final insult came when the White House issued a statement of non-support. Dodd went ballistic, brandishing a threat to withhold Hollywood's campaign largesse from politicians who failed to queue up hat-in-hand and make known their support for entertainment industry-friendly legislation. Speaking on Fox News after SOPA/PIPA were given the bum's rush out of the Congressional precincts, Dodd said:
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."
As Techcrunch noted:
People were protesting not just because of the content of these bills, but because of the corrupt process of big industries like Dodd's "buying" politicians and "buying" laws. To then come out and make that threat explicit isn't a way to fix things or win back the public. It's just going to get them more.
Well, truer words were never spoken. If Dodd had Internet heartburn on Friday, as of Sunday night, as I write this post, he's approaching something closer to full cardiac arrest. Dodd's threats galvanized the opposition and personalized the battle, that some folks are apparently happy to carry to him. Yesterday, on January 21st, somebody fired up a Petition at WhiteHouse.gov to Investigate Dodd for Bribery ! About a half-hour ago, I took a break from writing this post and became signer number 14,172, and I took a screencap to prove it. Then I went back to see how fast things were moving, and another 519 people had signed, for a total of 14,691, so people are signing at the rate of about one every six seconds. When signer number 25,000 clicks "SIGN THIS PETITION," it will automatically become an issue to which the White House will issue an official response, according to the rules of the game. At that point, Christopher Dodd will become political kryptonite, and as you know, President Obama, being Superman, does not play with kryptonite.
Now let us not be coldhearted. A human being is suffering here. But the question is whether we should be asked to sacrifice our freedom of speech, and the functionality of the Internet that we apparently want to preserve as a common resource of communication and experience, in order to end Christopher Dodd's pain. I for one, vote "NO," and there are two reasons: first, the goal of strengthening the statutory monopoly of copyright holders is not a "compelling state interest," and second, the means Congress proposed to use in SOPA are not the "least restrictive means" of achieving that goal. These two reasons are the ones that have caused the United States Supreme Court to overule Congressional speech regulations even when the stakes are high - like preventing children from viewing "indecent material" and "harmful matter." In Reno v. ACLU, the Court struck down the "Communications Decency Act," explaining its ruling as follows:
At issue is the constitutionality of two statutory provisions enacted to protect minors from "indecent'' and "patently offensive'' communications on the Internet. Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three-judge District Court that the statute abridges "the freedom of speech'' protected by the First Amendment.
Why? The reason was simple. In the process of screening out the offensive content, too much inoffensive content is blocked:
A statute that “effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another … is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.”
SOPA would clearly violated this principle that requires Congress to use the "least restrictive" means to accomplish what must be a "compelling state interest." Janet Reno was defending the CDA, and she lost. It fell to John Ashcroft to defend COPA the Child Online Protection Act, and he lost, too, in Ashcroft v. ACLU, where the Court explicitly held that filtering software would be more effective, and less restrictive, than criminalizing the operation of a website that transmitted "harmful matter." This was even though the Court took it for granted that restricting the production and distribution of child pornography was a "compelling government interest." On June 29, 2004, the Court issued an opinion that illuminates where the analysis would take the litigants:
The ... test does not begin with the status quo of existing regulations, then ask whether the challenged restriction has some additional ability to achieve Congress’ legitimate interest. Any restriction on speech could be justified under that analysis. Instead, the court should ask whether the challenged regulation is the least restrictive means among available, effective alternatives.
In the case of COPA, the "status quo" of regulation, was of course that producing and distributing obscenity and child pornography were already quite illegal, felonious acts; whereas in this case, SOPA would create new crimes and civil penalties for vague offenses. Matthew Lasar at ArsTechnica, writing on this same topic, has culled some of the vague new crimes conceived by Hollywood lawyers for swift passage through the email accounts of Senatorial staffers and immediate uploading to the digital printing presses of the Congressional Record for publication as newly-minted sections of the United States Code. At least, until the kittens threw a monkey wrench into the machinery. But for the kittens, SOPA would already have passed, and the law would currently define a site as "dedicated to theft of US property" if it:
- 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 [violations of various sections of US copyright law].
- Is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation [of US copyright code].
- Operates the U.S.-directed site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation.
Whereas the line between pornography and non-pornographic communication has always been fuzzy, with Justice Stewart famously defining it by saying, "I know it when I see it," these SOPA-crimes are masterpieces of legislative skullduggery, clearly products of the lobbyist's pen. Could these legal stylings "pass constitutional muster" in the first instance, or are they clearly void-for-vagueness? You be the judge. I submit that it would be difficult to disprove the accusation that you had taken "deliberate actions to avoid confirming a high probability" of anything! When, for starters, does the "high probability" arise? And once it does, how am I to know? And what must I do to not avoid confirming? Must I confirm? And if so, only upon demand, or must I do it proactively, in order to avoid the charge of avoiding confirmation?
Moving beyond the particular, to the general purpose of SOPA, that everyone is more comfortable talking about, what is the law meant to do, and how does it propose to do it? The goal of the law is to strengthen the enforcement mechanism of the copyright holder's statutory monopoly. The law would do that by differentiating between two types of speech - that which is being lawfully trafficked by the monopolist and his authorized agents, Hollywood and its minions, and that which is being illegally traded by unauthorized persons. The first category of speech is lawful, the second category is contraband. SOPA would enhance penalties for dealing in contraband speech, and it would force companies that transmit speech to act as censors, making it illegal to transmit contraband speech. Note that contraband speech is already illegal material, just like marijuana, except that Hollywood moguls like marijuana, so they are not trying to enhance penalties for possession of marijuana like they are for possession of non-Hollywood-authorized movies and music.
I suppose Congress can probably make criminal penalties for possession of contraband movies and music as stiff as they want, stiffer than laws for bank robbery or rape, and the Supreme Court would never find that unconstitutional unless they actually made infringement of copyright a capital offense. Even then, who knows? People can bear almost anything, and the Supreme Court seems to think they should. But corporations, ah, they've got First Amendment rights as large as their bank accounts, and as we know from Citizens United, those bank accounts are very large, so their First Amendment rights are equally humongous. And it's the First Amendment rights of Google to transmit all of that speech that will be interefered with if SOPA forces Google to police links. And it's the First Amendment rights of innumerable ISPs and communications transmitters that will be involuntarily pressed into service as customs agents to separate out contraband content from legitimate content, blocking functioning websites in faraway lands, as directed by lawyers at their terminals, copying and pasting links from sites they think are infringing. And of course, at the end of a long line of communications transmitters, would be the hundreds of millions of eyeballs of users, enjoying the thin gruel of strained content that remained after it passed through the Hollywood seive. I don't know about you, but that seems like a pretty restrictive way to accomplish something that may not be really all that important -- not anywhere near as important as protecting children from being used in child porn productions. It is the copyrighted-entertainment industry that is after this law - after all - an important industry, but not the be-all and end-all of our economy. And certainly entertainment is not the altar upon which we should sacrifice precious rights of free communication that enable political discussion and self-governance. I'm afraid that Christopher Dodd has picked entirely the wrong kittens tangle with.