The Online News Association on Thursday came out strongly against sweeping federal legislation aimed at curbing illegal copying and distribution of content online.
With the announcement, ONA adds its voice to a growing chorus of those opposing the Stop Online Piracy Act (SOPA) currently being debated in the U.S. House of Representatives, and its U.S. Senate companion, Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT-IP).
The bills would allow copyright owners to get court orders to block not only infringing content, but entire websites as well as allow the U.S. attorney general to block content or websites the U.S. Justice Department deems as engaging in criminal copyright infringement. (It should be noted that this is already permitted under U.S. law, but
foreign governments don’t recognize our laws. That’s why drafters, in late December, tried to clarify that their intent is to ensure SOPA targets foreign websites).
But the language is still murky and too broad, experts say.
“The problem is, who decides what is copyright infringement? … If you’re setting up a system of blacklisting websites at the national level you’re basically installing a censorship mechanism that is almost identical, technically, to the mechanism the Chinese use to
censor their Internet, that the Iranians use, and so on,” says Rebecca
MacKinnon, a former CNN journalist, in a Bloomberg interview.
Both bills have been the source of much wrangling over the past couple of months. But with the exception of a few stories reporting it as a battle between Internet giants including AOL, Google and Yahoo and powerful interests representing entertainment conglomerates such as Comcast and the Motion Picture Association of America, journalists have said very little about the copyright legislation.
That is, until late December when the American Society of News Editors (apparently the first journalism association to do so) publicly came out against the legislation, saying the bills would inhibit the “free aggregation of content that has become central to online journalism.” ONA — representing editors, writers, technologists and others whose principal livelihood involves gathering or producing news for digital presentation — is now following suit.
And just today, AOL, Facebook, Google, Twitter and five other Internet powerhouses endorsed an alternate online privacy bill that targets rogue sites more narrowly.
Hillel I. Parness, a partner who specializes in intellectual property litigation at Robins, Kaplan, Miller & Ciresi in New York, said journalists should be in favor of helping to protect the content that they create.
“We saw this loud objection in 1998 as well (when the Digital Millennium Copyright Act was passed). The difference then and now is that we did not have a robust Internet then,” Parness added. “We didn’t have thousands of bloggers shouting their opinions then.”
Parness, who said he is neither in favor nor against the bills being debated in Congress, acknowledges that drafters may need to tweak ambiguities in the language in some sections of the legislation.
He said last-minute changes to the House version of the bill eliminate one of the most controversial provisions, a complicated take-down notice process, and now allows copyright owners to go straight to court to file a lawsuit and get a court order to remove infringing content. The legislation also clarifies that its target is foreign websites, he said.
“SOPA doesn’t change the fight,” continued Parness, an adjunct professor at Columbia Law School. “If you’re concerned about how journalists are treated by the courts, then that’s a concern you had before SOPA.”
Still, some media policy and legal scholars argue that worrying over stolen work is the least of journalists’ concerns when it comes to the federal copyright legislation.
Allowing a court to decide whether content or a website should be blocked opens the door wider so that judges could decide who is and is not a journalist, according to James Losey, a policy analyst with the New America Foundation’s Open Technology Initiative, which promotes regulatory reforms and policies that support a healthy media in a 21st century democracy.
For rights holders like journalists and news organizations, Losey said the legislation represents a power they do not want.
“It represents too much control over what information flows online,” Losey said. “I think what we’re seeing is a wake-up call for a lot of people, especially those who don’t normally pay attention to copyright legislation. This is not a copyright debate anymore. This legislation goes directly to tampering with how people use the Internet each and every day. It goes to how we mediate with our government and how we relate to our news. … If you start tampering with the basic interaction with the Internet and undermining free speech, you are effectively tampering with all aspects of online life, including access to information.”
The legislation’s intent is to capture websites that engage in criminal copyright infringement and counterfeiting as well as those that promote services or products to circumvent the legislation’s provisions. But Marvin Ammori, a free speech lawyer who represents technology companies and is affiliated with Stanford Law School’s Center for Internet & Society, argues that the way the bills are currently written could also hurt journalists who use, or should be using, encrypted technology to communicate with anonymous sources.
Encrypted Internet messages used for real-time communication and technology used to protect files as they are passed between individuals and servers using the Tor Project, a popular privacy tool that enables anonymous communication, would both be illegal under the legislation being considered, Ammori said.
Funded by the U.S. State Department, the Tor Project creates encryption technology used heavily to transfer copyrighted files (think WikiLeaks). The tool is particularly popular with foreign dissidents living in repressive regimes. The legislation would not only make sending the copyrighted files illegal but would also end-run many other of the copyright bills’ provisions, which would also be illegal, said Ammori.
“Any American legislation that makes State Department-sponsored free speech technology illegal in the United States for two separate reasons should give us pause,” Ammori wrote in a blog post.
Legislators are expected to begin debating the legislation again later this month.
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