And so, it begins

Mar 2, 2012 | Opinions

You know, I never thought Ireland would be the first country to pass something like SOPA. In retrospect, though, it’s almost inevitable. The combination of politicians who are easily bought and technologically ignorant seems to jive well with licensing agencies who have a lot of money and are not technologically ignorant, but certainly dishonest in the interest of protecting their business model.

Ah yes, the business model of the IRMA. They say it’ll protect Irish musicians and recording artists. I had hoped that they would have toned down the stupid since the last time I wrote about them, but it seems my hope was in vain. Anyway, let’s break down the implications of the law that’s being called the Irish SOPA.

The text of it is tough to find, but I picked up a preliminary version over at the Effectively, and as many others have said, the law allows the rightsholders (probably IRMA, IMRO, PPI, take your pick) to get an injunction from the courts to stop their work – sorry, I mean the artists’ work that they rely on to make money – from being shared on websites. The courts can order things all kinds of broad censorship, like blocks at the ISP level or blocks on certain kinds of Internet traffic. The Journal article lays it all out.

This law really makes me want to shake my head in disbelief. It’s the same deal with things like the DMCA, or the ICE takedowns in the US. There are a few questions that I’d like to ask of Sean Sherlock, the idiot minister who decided to push this through:

  • Do you use the Internet? No really, do you? Have you any understanding of how it works, or the size and speed of it? Have you any concept, no matter how vague, of just how much commerce and information flows through it from second to second?

  • Have you done any kind of research on things like the American DMCA, and how it’s routinely used to censor legitimate content and disrupt legitimate business?

  • Do you know what is, and have you ever visited it? Yes, I know it’s American and therefore not quite applicable.

  • Did you ask the music industry, even once, to show you evidence that piracy is a problem?

  • Do you realize that this law cannot do what you – oh I’m sorry, I mean the music industry – want it to do?

Like watching a man trying to empty an ocean with a bucket, this type of law simply cannot succeed. They all make a number of assumptions which don’t match up to reality.

That the Internet can be regulated.

No, I’m afraid not. The ARPAnet that eventually evolved into the modern Internet was originally designed to be distributed and resilient in case of nuclear attack. Regimes like Iran, China, Pakistan and others try to censor it more harshly than this every day, and it still reaches into those countries and censored information finds its way to their citizens. I believe John Gilmore said it best: “The Net interprets censorship as damage and routes around it.” This is a fool’s errand of the highest kind; regulation and control has shown to be historically impossible, even if you’re prepared to enact the kind of draconian measures that would drive all those lovely job-providing multinational tech companies out of the country in a heartbeat.

That it’s possible to remove the bulk of pirated material.

No. Frankly, I wonder if they’ve done any reading at all on this. If something is popular enough that a lot of people want it, then it will always be available online in some pirated format. It becomes a case of Hydra Head Syndrome – go to the trouble of getting a court order to shut out one site, and another three spring up in its wake. Block one domain, and the site reroutes around it under a new domain. Honestly, the Pirate Bay has been in the firing line of the US and Swedish governments for years, and it’s been blocked in a number of countries – one site out of thousands, and it’s still accessible. The problem is one of scale and ease. It takes longer to block a site than it does for the site to get around the block.

That you will only target infringing material.

How, exactly, do they determine that something is infringing? The music industry’s track record, for example, on identifying infringing material is legendarily terrible. They routinely ruin legitimate sites and censor legitimate content. The whole point, in fact, of the ChillingEffects site is to document instances of this kind of thing – where the DMCA is used to take down legitimate online content because that content makes some people uncomfortable. It is inevitable that this law will be misused because there is no penalty if the site or content in question is not infringing. History is not on your side here.

That the process of the law is fair.

It isn’t. It’s like the DMCA – heavily weighted in favor of the copyright holders, with little or no recourse for the accused. You’d think that a notice-counter notice system would be appropriate, but there’s no provision in the law for such a thing. The language is vague. It allows for court orders to force ISPs to act, but the ISPs have no incentive and no directive to check the material to see if it’s actually infringing. End result? The content is blocked regardless.

That the artists need protection.

This is part of a larger question about the music and movie industry, to be honest. Again, the US is a good case study for this – they’ve never been able to show that casual copyright infringement actually has any significant effect on sales. There are a number of studies, paid for by Hollywood, that make some very outlandish claims about losses; they’ve been debunked so many times it’s becoming laughable. There are also solid figures, from the licensing authorities themselves, that show that both industries are growing more than ever. More music is being produced, more money is being spent on live music, more movies are being filmed, and record box office receipts are being posted. Less money is being spent on plastic discs, but to say that piracy results in less money spent on content overall is demonstrably false. It begs the question of who really needs protecting – the artists, or the legacy players who make the bulk of the money off their work?

That this will mean more sales.

Something that the content industries have never really explained is how censoring their content from the net results in more sales. That’s the point of all this, right? So that the artists – sorry, the industries who sell plastic discs for a living – make more money, because why else would they make such a fuss about it? I understand the logic, true enough – that if someone can’t get a song or movie illegally, they’ll get it legally instead and pay for it – but in practice, it just doesn’t hold up for several reasons. The content industry don’t have a monopoly on entertainment. The pirate may not have money to spend on the content. The content may not be available in their region at all, or in their preferred format. They may not have the time or the inclination to search out the plastic disc version or a legal online version through something like iTunes – assuming it’s there at all, as illustrated by a recent Oatmeal comic. In short, there’s nothing to show that one pirated download is always equivalent to one lost sale, and plenty of case studies where piracy of something largely unknown boosted its sales through the roof due to extra publicity.

In conclusion…

I can’t be surprised that this passed. It’s just the latest in a long line of legislative failures from what passes for the Irish government. They have a history of screwing the Irish people in their search for more money, and this is no different. I think it’ll be interesting to watch it all play out, though, as it’ll inevitably piss off the likes of Facebook and Google, who keep their corporate HQs in Ireland. Then it becomes a matter of who has the deepest pockets and who can buy the right politicians. In the meantime, of course, the Irish populace will have another hardship to work through in their daily business and personal lives.