At the centre of the most animated debate ever on the vexed issue of Intellectual Protection on the internet are two Bills that seek to deny online pirates and counterfeiters the capacity to operate using a combination of constricting financial sanctions and strict penal action. Stop Online Piracy Act (SOPA) and Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA), being considered by the House of Representatives and Senate respectively, will afford US government agencies and holders of IP rights strong legal recourse against websites indulging in piracy and sale of counterfeit goods and by extension prevent misuse of the medium to break the law.
As per provisions of these two Bills, those caught 'enabling or facilitating' piracy ten or more times in a window of six months could potentially face up to five years in jail. The Bills outlaw US based firms from financial transactions, including providing advertising and/or other support such as payment gateways and processing facilities to sites involved in piracy and sale of counterfeit material. SOPA provisions additionally require Internet Service Providers (ISPs) to block such sites and search engines to remove links to offending sites from search results. Compliance failure could not only invite penal action but also lead to shutting down of such ISPs or search engines.
Despite the noble intent, both Bills have been mired in controversy primarily because of ambiguity regarding their operationalisation. Opponents of the bill, who are swelling day by day, fear that passage of these Bills into law would censor the internet, and stifle innovation and creativity. They also fear being trapped in a mess of unwarranted legalese. Furthermore, punitive action, critics fear, could be unilateral, without the process of verification and due diligence. Of all arguments against, the issue of web censorship has been the touchiest. Those opposed argue that beyond filtering the web, these Bills, if passed into law, would also disable circumvention tools, a key lever for those living in closed societies, crushing online activism and playing straight into the hands of the authoritarian state forever seeking ways and means to crush political dissent. Instead of dissuading real pirates, who could come up with a new website almost immediately, genuine and popular sites with high user generated content such as blogs and video and image sharing sites face the risk of being shut down for the offending actions of only a few members, rendering the law ineffective in practice and spirit.
The irony lies not in the fact that such a debate is happening, for the attempt to rein in the internet is as old as the medium itself, but around where it is happening. That this should happen in the United States, a nation arguably at the heart of the free world with far grander proven capacity, resources and knowhow to deny internet piracy than perhaps any other, is as much a poignant reiteration of the complex nature and enormous difficulty in any such undertaking as the perceived conflict of the potentially boundless medium with the bounded and organised nature of the modern nation state. For, the medium's boundlessness, the definitive centre of its existential ethos, often tends to obfuscate and even abjure laws, norms and cultural paradigms which make up the receptive framework within which its content is consumed.
While the conflict is ever present, it tends to be more pronounced in closed societies, given the limited space for public debate and ideological tolerance. Countries such as China, Iran, North Korea, besides several countries in the Middle East and Africa among others, have for long imposed varying degrees of web censorship reflecting sensitivity to the interests of their political, economic or cultural elite, but to very limited success. While blocking a site or service deemed offensive is the preferred mode in such cases, in situations where the stakes are really high, such as China, internet majors have acquiesced to the censorship demands of the state at the cost of their avowed liberal values (e.g. Google) or compromised the identity of users, endangering their lives (e.g. Yahoo), all for commercial consideration, upon which rest the foundation of, ironically, free enterprise.
However, free societies actively engaging on the subject of internet regulation in increasing numbers represent a relatively new and perhaps worrisome trend. The HADOPI Law of France, which saw several setbacks and iterations before finally being passed into law in 2009, the Digital Economy Act in the UK passed into law in 2010, and the most recent Sinde Law in Spain among a host of others which share common frameworks and deal with similar issues of web piracy and engagement have not been without controversy. Growing internet penetration magnifies the challenge the new medium poses the established order. The tipping point comes when the magnitude of this challenge crosses the tolerance threshold of a society, threatening the supremacy of its established order, the fabric which enmeshes a society's cultural, economic and social ethos and holds it together. The establishment then swiftly moves to reassert itself and check the challenger to ensure continuum. Free societies, given their liberal environment which encourages faster growth of the medium, typically reach this inflection point much earlier than controlled internet environments. That could explain the rising trend of freer societies engaging more animatedly on aspects of internet regulation now. While the debate at the moment is by and large restricted to issues surrounding the scourge of online piracy, there is a strong possibility that it could escalate onto denying access to counter culture movements for that is where the real threat to established order lies.
However, it has proved that enforcing legislative and legal action or policing the internet is not so easy. The boundlessness of the medium, technical difficulties, and law making and enforcing by arms of the state with limited technical wherewithal and understanding is seriously undermining the establishment response and represent a worrisome trend. Recent warning by the Delhi High Court to Facebook and Google that they could be blocked for not removing objectionable content needs to be viewed in this context. The court's observation is similar in spirit to SOPA and PIPA in that it wants law breakers penalised and order maintained. While the intention is right, the practicality is debatable. Laws vary from country to country, and what is legal in one country may not be so in another. Further, even if a particular site or service is blocked in one country what is the guarantee that it would not be accessed through say proxy servers or remote desktops and such from locations where it is banned. Under such circumstances if a website has indeed blocked a service in compliance with a local law but is being accessed through proxies leading to consumption of content prohibited by local law, on whom will the liability for such illegal access rest? The Online Protection and Enforcement of Digital Trade Act abbreviated as OPEN Act, proposed as an alternative to SOPA and PIPA, builds on these practical challenges by focusing on the more enforceable aspect of financial constriction of overseas pirate sites and leaving out the more contentious and difficult to implement aspect requiring Internet providers and search engines to redirect users from viewing offending content. It also proposes seconding enforcement responsibility to US International Trade Commission (ITC), an agency with greater expertise in dealing with Intellectual Property related issues arising from its position as the principal adjudicator of IP related disputes, rather than the Justice Department.
Internet is a new and non-conformist medium and as a medium, the social effect it has is far higher than all other media put together. Rules governing traditional media do not work on it. Non conformism is the biggest boon or bane depending on which side of the fence one is. For a cinema buff to find his favorite movie online is a boon while for the makers and distributors of that cinema, the economic consideration, the primary objective behind all those hard hours of toil, would be impacted by such clandestine viewing. Lurking behind the core issue of piracy, sought to be addressed by both SOPA and PIPA, are more complex and dangerous issues. Challenges posed by the medium to the established order and the latter's inability to size the internet animal creates a highly potent recipe for disaster. It is indeed the social effect of the medium that is of the highest concern. With increasing internet usage and acceptability, the threat perception from the medium will also increase. More controls and levers will be sought to rein it in. However, unless there is a paradigm shift in approaching the vexed subject of web regulation as different from traditional media, regulatory attempts will attract controversy and criticism besides remaining ineffective. This will in turn increase the number and ferocity of penal actions which will now have a dual role of creating a deterrence effect along with punishing the guilty. To be practical, enforceable and effective regulatory interventions must factor in particularities of the medium and co-opt different stakeholders. Else any genuine reform and meaningful regulation will remain a pipe dream.
(Jaibal Naduvath is a Mumbai based communication practitioner, with keen interest in media policies worldwide)
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