Random Thoughts – Randosity!

SOPA: Is it tortious interference?

Posted in fraud, free enterprise, government, legislation by commorancy on January 18, 2012

SOPA and PIPA take aim at ‘online piracy’.  Of course, the term ‘online piracy’ is defined as deep and wide as the Grand Canyon. How do you define ‘online piracy’?  Well, clearly, taking copyrighted works without the owner’s permission is considered copyright infringement.  We already have laws on the books that protect copyright holders.  For years, these legal mechanisms have worked. Basically, the copyright owner identifies the alleged infringer and takes them to court, then proves the case (in front of a judge) that someone infringed.  So why isn’t this enough?  What changed? The entertainment industry wants more power.

For Hollywood and the music industry, the current legal system is not enough.  Now they want to interfere with businesses’ abilities to continue to do business.  Both the MPAA and the RIAA have tried various mechanisms to gain control over stopping piracy without involving the courts.  The entertainment industry wants direct unfettered access into businesses to force them to stop ‘enabling’ the alleged pirates.  No due process, no courts, no guilt or innocence determination in a court of law.  No, all of this they want outside of the courts.  They want to tell someone to stop doing something without any due diligence or fiduciary responsibility. “Oops, we made a mistake?  My Bad. Tee hee.”

Legalized Tortious Interference

With SOPA, this goes one step further and effectively becomes legalized tortious interference.  So what is tortious interference?  Simply put, it’s when a random third party steps into a two party contract and causes one party in the contract to breach the contract for the other party.  That is, the third party prevents a party in a contract from being able to fulfill their contractual obligations.  How does SOPA do this? It does this by forcing banks or other financial institutions to stop transactions to one of their customers on a third party say alone.  It does this by asking DNS registrars to disable domain names and prevent web sites from functioning without any court determination of guilt or innocence, again, on say alone.

Guilty until proven innocent

Clearly, our legal system and government system is broken.  More than that, our legal system is taking a huge step backwards. Back to a time before the US adopted ‘Innocent until proven guilty’.  Clearly, this mantra means little in the legal system today. With an adoption of SOPA or PIPA, we would always be presumed guilty until proven innocent.  Those in the entertainment industry are severely undermining our legal infrastructure and, if you also happen to be a conspiracy theorist, systematically dismantling it with the help of of the US Congress no less.

Internet Piracy and the end of independent artists

The music and movie industries have yet to prove substantial losses regarding piracy, yet they continue on this legal tirade that attempts to systematically destroy our current legislative system with such overreaching laws as SOPA and PIPA.  So overreaching, in fact, that these acts need no court interaction to remove alleged infringing sites from the internet without any court due process or a trial by peers.  They offer no way to prove innocence easily or to refute any claims alleged.  Simply put, the entertainment industries want to control businesses at a fundamental level outside of the courts.  They simply want to call up GoDaddy and say, “You have a site that is infringing, take it down” and GoDaddy must comply with no questions asked. This is the entertainment industry’s ultimate goal:

  • No legal system involvement
  • Forced compliance
  • No due process
  • No refuting copyright claims allowed
  • Instant removal

Clearly, we don’t want to be here.  No single private industry should have that level of legislated control over any individual or business.  Even law enforcement shouldn’t have that level of control over individuals or businesses without due process.  The entertainment industry, let alone law enforcement should follow due process just like any other individual or business is required to do.  If one industry is given that level of government sanctioned legal control, this country will fall and it will fall hard.

If SOPA or PIPA pass, we will move into a new dark age.  An age without new books, new music or new creative works of any kind (other than those that the music and movie industries want us to see).  The age of independent creative works will end.  The age of creative new web sites will end. Eventually, even Hollywood and the music industry will end because of the negative backlash over the lack of substantial creative content… ultimately leaving no creative works of any kind.  Independent creative people will stop creating because SOPA will have been so completely abused people won’t set up new sites for fear of a SOPA backlash.  Existing businesses will stop doing business with anyone involved in creative works (and let’s hope that includes Hollywood).

Censorship

Part of the SOPA and the PIPA drafts suggest that ISPs adhere to a browsing blacklist.  That is, ISPs would be required to prevent access to sites that are ‘known pirate’ sites.  This is allegedly to target non-US sites, but it could just as easily target sites within the US.  ISPs are and should be treated as a common carrier.  That is, what is carried over their lines is not their responsibility either in or out.  Requiring ISPs to become filters for the government and the entertainment industries is, again, overreaching.  There is no need for this.  I do understand what the MPAA and RIAA are both trying to do. But, instead of using censorship to block sites, they should simply go after the site directly.  Do not censor everyone else’s view of the Internet because of an suspected problem.  Again, this is simply like throwing the baby out with the bathwater.  No, just throw the bathwater out .. meaning, if a site becomes a problem, go after that specific site.  Don’t require ISPs to block access to the site for every subscriber in the US.  Censorship is not an acceptable problem resolution in any form here in the US.  That representatives and senators are even considering this is amazingly chilling.

Chilling effects

Legislation like SOPA is chilling.  It should not ever be passed. This legislation is the wrong legislation at the wrong time and for the wrong industry.  No one industry should wield that level of unregulated power towards any other industry.  The DMCA attempted that level of control but failed to work. SOPA is the next step to come out of the DMCA, but it is far too overreaching. Worse, this type of legislation needs to end before the United States as we know it ceases to exist.  With legislation like SOPA, the US is leading itself to its own demise.  We are, in effect, legislating the US out of existence and SOPA is just one step towards that end.

Consider who the major players are in Hollywood and in the music industry. Most of the players are not even US companies. Again, a conspiracy theorist could have a field day with all of this.

I’m sorry to say that entertainment is the least of this country’s worries, let alone the entertainment industry.  They can fend for themselves.  Boo Hoo, the movie and music industry might have lost 50 cents because someone allegedly downloaded a song or watched a movie online. Show us the numbers!  The entertainment industry already has laws and the court system to back them up with both patent and copyright infringement claims.  There is no need for any further legislation on this front. The US needs to focus its efforts on the economy and keeping this country afloat. The US is not responsible for propping up industries that can’t even properly manage themselves.  Let’s let Hollywood and big music figure out how to manage themselves using the existing laws.

More then that, let’s make these industries first prove substantial losses to piracy before we give them any level of power, let alone this level. Just say ‘No’ to SOPA and PIPA. Write your congressional representatives and ask them to not support this legislation.

All comments are encouraged under the following rules: Comments will not be posted that contain personal attacks. Personal attacks only serve to degrade your comment, make you seem like a troll, weaken your stance and undermine your points. Please choose your words carefully. Thank you for contributing!

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