Recently, several pieces of legislation were introduced in the United States Congress aimed at preventing internet piracy and protecting intellectual property (“IP”). Specifically, the Protect IP Act (“PIPA”) and the Stop Online Piracy Act (“SOPA”) were the two leading attempts at limiting the Internet. The bills seemed almost guaranteed to pass until a tremendous amount of protest by internet users and internet companies greatly influenced Congress to delay voting on the bills and convinced lawmaking proponents of the bill to cease their support. During the arguments over the bill, opponents quickly drew comparisons to the Internet censoring structures of Iran and China, two countries infamous for their internet regulation surmounting to human rights violations. The same could be said for PIPA & SOPA, but one main difference is that the American bills at least mask censorship of speech by claiming their only goal is to stop piracy and protect IP rights. But, there is a conundrum: there are both human rights in IP protection, and in freedom of speech and expression.
Human Rights Issues Concerning Internet Regulation
The Universal Declaration of Human Rights provides for rights to freedom of speech and expression, along with intellectual property rights. In Article 19 the rights to speech and expression are materialized:
Everyone has the right to freedom of opinion and expression: this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Although the Internet did not exist in 1948, when the Declaration was created, the Internet is still a form of media and a frontier in the context of this article. The laws of any country which limit the freedom to receive and impart information on ideas through the Internet are surely in violation of this fundamental human right. Article 27 of the Declaration seems to deal directly with intellectual property. There are two sections to Article 27:
- Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
- Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Laws such as SOPA & PIPA have a curious task in balancing these two provisions. How do you balance the individual’s right to protection of moral and material interests stemming from authoring scientific or artistic creations, if everyone has the right to freely participate in the cultural community and to enjoy and share in the arts and benefits of scientific advancement? The Internet is a medium in which millions of people are creating art and advancing science every single second, participating in a cultural community (Art. 27-1). Ironically, it may be necessary to limit the medium in order to protect such creation of the individual (Art. 27-2). Further, the Internet is a river in which the water of ideas constantly flows, and setting up a dam to protect individual creators (Art. 27-2) will consequently impinge upon the right of others to express and hold opinions and receive information (Art. 19). Countries like China and Iran are highly criticized because the regulatory infrastructures are far from sympathetic toward the rights found in Art. 19 and Art. 27-1.
China and Iran: Arbitrary and Disproportionate Internet Censorship
China’s “Great Firewall” is the strongest and largest censorship structure of the Internet currently, with Iran’s filtering software right behind it. The two countries use firewalls and other software to block online speech which it finds immoral or threatening to their system of fear they worked so hard to use to control their citizens. China not only stymies unapproved content, but the country targets individuals and restricts them from using the Internet altogether. In fact, a Chinese citizen can easily be arrested for writing a single email complaining about the government. Both countries participate in this imprisonment of cyber dissidents, clearly violating the human rights embedded in the sections of the Declaration discussed above. The governments use internet censorship to stop the infiltration of outside, specifically western, media and politics, and to monitor speech internally. The two governments use a filtration system which requires all websites to register through the government and gain permission on its content. Although it is well known that the two countries perpetuate abuse through their regulation of speech, the level of the abuse is hard to discern because of the censorship itself.
China’s and Iran’s main goal in internet censorship is to regulate speech in order to suppress dissidence and ensure control through fear. The United States Congress’ attempt at censorship is aimed at protecting IP, but the fear is that the bills are too broad and even any amount of censorship would inevitably lead to a system like China’s and Iran’s where the government can pick and choose which speech is made available.
SOPA & PIPA: A Road to Another “Great Firewall?”
The human right to protection in one’s IP is uncontroverted; everyone deserves protection for their individual innovations and contributions to entertainment, the sciences, and more. SOPA & PIPA have the right intentions, but will likely have the wrong effects. Such effects will inevitably lead to the squelching of speech not subject to IP protection, but subject to protection as a human right. Thus, the bills need to balance such squelching with IP protection, the two human rights at issue. When the bills are analyzed, it is clear that they fail in sufficient IP protection, and go too far in squelching the freedoms of speech and expression.
One main illustration of this imbalance is that although SOPA & PIPA claim to only target foreign sites which infringe on IP, the bills require compliance and liability on third party U.S. sites as well. Not only will this result in suppressing foreign sites from entering U.S. internet domains out of fear of being subjected to lawsuits for what users or subsidiaries post on their sites, but U.S. sites have a positive duty to monitor content and would be subject to liability (under SOPA at least) if they do not act on infringing content. This will inevitably lead to startup companies, whether foreign or domestic, and individual users, deciding to not enter the market or post on sites out of fear of violating the act, squelching potential speech. This is particularly problematic for sites such as Youtube and Facebook, which are engines of free speech and allow for user generated content. The bills are overbroad as sites would be in violation of the bills for “enabling or facilitating” infringement. How far does the definition of enabling or facilitating go? Practically, the existence of the Internet itself enables and facilitates infringement. Youtube and Facebook would have to take positive steps to monitor millions and millions of domestic and foreign users. They would be subject to the lawsuits and potential criminal sanctions associated with bills if they fail to do so. This would result in the suppression of both speech and the mediums of speech themselves. Craigslist, Google, eBay, personal sites of musicians, fan sites of celebrities, and other millions of sites that enable the spread of information, speech and business will inevitably be targeted for infringement claims under the broad nature of the bills.
Also, the mechanism for censorship under the bills is exactly the same mechanism used by the Chinese: DNS blocking. DNS, or Domain Name System, is the identification protocol for anything connected to the Internet. The bills will block the particular DNS which supports or facilitates content in violation of IP rights. This is a wholesale technique which will block other speech under the particular DNS that is not in violation of the bills. This is concerning because the U.S. has promoted similar legislation in other countries, particularly Russia, which now use the legislation to suppress political dissidents, rather than to protect IP. Although there is some evidence of China’s and Iran’s use of their anti-piracy laws to censor speech over the Internet, they do not need to use such laws to do so since their censorship laws are so blatant. But in Russia, the government has used laws similar to PIPA and SOPA to target anti-government dissidents. Once these bills are passed, the United States runs the risk of allowing the government to abuse, whether discretely or not, their newfound censorship powers.
In conclusion, bills such as PIPA and SOPA are too risky. The potential for grave and far greater abuse of our Art. 19 and Art. 27-1 rights, rather than protecting violations of our Art. 27-2 rights, justifies the overwhelming protest over the bills. For now, the bills have been tabled, but not thrown out. The risk of falling into a censorship system eerily similar to China’s and Iran’s, is not worth the minor potential protection of IP these bills have. In fact, many critics of the bills believe they are far too focused on enforcement. The Internet is too dynamic and ever changing to think that DNS blocking and some fear is powerful enough to sufficiently protect IP rights. Many think that the fix to IP violations over the Internet is to be found in the business realm. The true path is to focus on user friendly, clean, and intuitive services, such as Netflix and Spotify, that give users incentives to pay for content at a reasonable price. There seems to be a disparity in how much money proponents of the bills, such as the movie and music industry, want out of their products and what the consumer is willing to pay. But, from a human rights perspective, the risk seems too great to justify the benefit.
Popularity: 8% [?]