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January 19, 2012
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Black Vulture

© - Black Vulture

For those of you hoping to see another installment of my photography travels, I’m afraid you’ll have to wait at least another day.  Besides, the title of the blog is “Usually Photographic”…

I rise today in opposition of two pieces of legislation that are making their way through the different chambers of Congress.  Stop Online Piracy Act (SOPA) and Protect Intellectual Property Acts (PIPA) have as noble of set of intentions as one could expect from a piece of legislation largely crafted by an industry it is designed to help.  I’m a polite person so I cannot call these pieces of legislation what they really are, but in kind and gentle words I can say that a substance very similar to these bills is a nitrate-rich organic material, originating from creatures in the bovine and equine families, that can be used fertilize farmland.

When I think of these bills I think of a documentary I saw a number of years ago about shepherds in two regions of a country somewhere in Europe.  In Region A, the shepherds stayed with their flocks of sheep and kept watch over them.  In Region B, the shepherds enjoyed a cup of coffee with their shepherd friends during the day.

Both regions were inhabited by carnivorous mammals (wolves I believe) that were threats to the sheep.  The flocks in Region A were hardly ever touched by the wolves in spite of the fact that the shepherds carried no weapons to keep them away other than their crook.  The flocks in Region B were constantly being attacked.  And the shepherds in Region B wanted there to be open season on hunt the wolves at all times and shoot them on sight so that their sheep would not be attacked.

In the US, there has been a law on the books for many years called the Digital Millennium Copyright Act (DMCA).  It was an initial attempt to try to apply copyright law to the information superhighway.  And while it was far from perfect, it did, for the most part, maintain a status quo on things like Fair Use.  This did not make the entertainment industry happy as they have been fighting Fair Use as far back as the days of cassette tapes and VCR’s.

In DMCA, there existed a safe harbor provision that acted much in the same way the old copyright law worked for telephone providers.  Just as a phone company could not be held liable for copyright or other law violations that occurred on their telephone lines, nor could web site operators be held liable for the actions of those who posted to their site.  If a link you put on your site linked to an otherwise clean website but it had a link on it somewhere to something that might violated somebody’s copyright, you were safe.  If a copyright holder notified you as a website owner that there was a problem, there was a structured legal framework to provide due process the copyright holder and the person who posted the information.

And by gosh you should be as should the telephone company back in the day.  The burden of proof in the US legal system always rests on the one who is being harmed as to whether or not harm exists.  SOPA and PIPA, amongst other things, shifts the burden of proof of investigating who owns a copyright squarely onto those who are not in a position to know.

In Viacomm v. Youtube, Viacomm lost their copyright suit (on summary judgement, no less) because of the safe harbor provision.  From that point, on the push from the entertainment industry has been to move the burden of proof because metaphorically, the entertainment industry (and others who really on intellectual property) want to drink their coffee rather than protect their flock.

So how would passage of these laws, as written, would this blog?  I’d probably have to turn off comments.  At the very least I would have to moderate every comment and do hours of research in an effort not to get sued.  I’d likely have to remove my blog roll.  That is a chilling effect on free speech and it would destroy much of what made the Internet so great in the first place.

As an IT professional, I can assure you that the legislation would not stop pirating of music, movies, and software.  For every technical wall that is put up to keep a pirate out, the pirate will figure out who to get over the wall with only the honest folks behind the wall losing.  It is only with vigilance by the shepherds of the intellectual property and international cooperation that the problem of piracy will be diminished.

I could get into the intimate details of how the mechanics are flawed and the unintended harm that it would cause, but that would take another couple thousand words and I don’t think anybody really wants to see that.  Please trust me when I say that when the side effects of the medicine are deadlier than the illness it is trying to cure it is probably a bad idea to take the medicine.  If you don’t trust me, read these piece by Joshua Topolsky in the Washington Post who illustrates it better than I can in a much shorter space.

I urge you to call, e-mail, or otherwise communicate with your elected representatives in Washington, D.C.  Write everybody who is up for election in the “District” come November.  Remind them what an upset electorate (see also Health Care Reform) can do to the continued job prospects of incumbents who do not listen.  Urge them to engage all parties to come up with a workable solution rather than this pasture pastry they are trying to pass off as a golden nugget.

I now return you to your normally scheduled blog.

About the Image:
I knew I’d find an appropriate time and reason to bring the Black Vulture (Coragyps atratus) back out…

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