A furious battle is taking place in Congress about the future of the Internet. Lawmakers are trying to figure out what rules should govern the Wild West of the Web—with issues ranging from cyberbullying to police access to private social network pages. Like many aspects of our lives, though, the battle has now gone viral, with Wikipedia shutting down most of its English site for 24 hours in protest against the proposed Stop Online Piracy Act (SOPA).
The reach of SOPA is broad and the penalties drastic. Let’s say I post a home video of my family on YouTube and there is a Velvet Elvis on the living room wall behind me. Under SOPA, since the Elvis image is copyrighted, the U.S. Attorney General could step in and shut down all of YouTube because of my transgression. The AG could force all search engines to pretend YouTube never existed and not link to it. And I might even go to prison for five years, if I’ve shot ten home videos in the room in front of the Velvet Elvis or if, in my videos, my CD player was playing my favorite songs.
The frenzy of Congressional interest in SOPA is like a big budget movie. Think Gladiator. Or Cowboys versus Aliens. Or even Revenge of the Nerds. Weighing in on one side with wads of cash are the lobbyists who say they want to protect their intellectual property—groups like the Motion Picture Association of America, the Radio Industry Association of America and Viacom. But in the other corner of the ring, the major opponents are no lightweights themselves—Facebook, Google, YouTube, Twitter, AOL and Mozilla Corporation. If SOPA is passed, Facebook and those other entities would have to monitor every posting or transmission each of us makes on their sites and zap us off the site if we were potentially violating someone’s copyright. If the site’s censors missed one of those posts, the site itself could be shut down or made invisible to search engines.
The pro-SOPA forces are trying to vastly expand intellectual property rights, which have their roots in a provision of the U.S. Constitution written 225 years ago to promote innovation. Those in favor of SOPA act as if those intellectual property rights exist in isolation. But the same men who put the innovation clause into the Constitution—the Founding Fathers—also put in provisions to protect freedom of expression and privacy. And it’s worth thinking about the logic behind the Founding Fathers’ choices about people’s rights in order to decide whether Congress even has the power to enact SOPA.
In my new book, I Know Who You Are and I Saw What You Did: Social Networks and the Death of Privacy, I describe how, when the American colonists set about to express their fundamental values, they adopted measures to ensure a marketplace of ideas. They vehemently rejected the British approach, which required that an individual get a license in advance of publishing anything. The Brits also had a law which made public criticism of the government not only illegal, but punishable by death. The colonists revolted against the British approach and founded our nation with strong protections for communication, including the First Amendment to the U.S. Constitution: “Congress shall make no law . . . abridging the freedom of speech, or of the press.”
Since the Founding Fathers’ vision was forward looking, the fundamental values expressed in the U.S. Constitution are broad enough to embrace freedom of expression on the internet. Early in the development of the internet, the U.S. Supreme Court recognized the importance of digital discourse. “Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox,” the Court observed in Reno v. ACLU. “Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.”
The internet has been a boon to freedom of speech. But SOPA would introduce into law the type of censorship the American colonists revolted against.
Yes, protection of intellectual property is important. But the men who wrote that provision into the Constitution also put into place free libraries so that citizens could have access to information. Imagine if Viacom had been around then. It would have opposed free libraries. What? You mean the business model is that some library only pays for one book and a lot of people get to read it? Screw that!
In Chicago, free libraries are being shuttered on Mondays due to cuts in the city budget. Now schoolchildren need to turn to the Web, rather than a library, to get their information. But if Wikipedia and Google can be blocked out at the whim of the copyright holder, our revered marketplaces of ideas could disappear as well.
Lori is a law professor and the author of I KNOW WHO YOU ARE AND I SAW WHAT YOU DID: SOCIAL NETWORKS AND THE DEATH OF PRIVACY.
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