SOPA, Hypocrisy, Scandal, DMCA, and Censorship

Missing The Point
I've been disappointed to see the various responses to SOPA, especially the "DEVIATION CENSORED" images. They so completely miss the point that I can only assume the people posting them have absolutely no comprehension of what SOPA means, why it's a problem, and what they're actually protesting against.

First off, SOPA is not about censorship. Unfortunately, many of the opponents of SOPA decided to cast it as being about censorship in order to mobilize public opinion. Why did they do that? Unfortunately, they did that for two reasons: 1) they knew that without mobilizing mass support, the bill would go through and 2) they knew that the masses they wanted to get support from simply don't care/understand the real problem enough to do anything - because the truth is much to complicated for the typical internet user. I have some sympathy for that view, because I've discovered over and over again that copyright is, in fact, too complicated for the typical internet user to grasp. Or, perhaps it's easy to grasp but they just don't want to because they like downloading "free" music and movies and your art and my art too much to be bothered. See, SOPA is not about censorship, it's about copyright and the people mobilizing public opinion against it knew that if they tried to cast it in its true light there would be too much nuance and not enough anger.

So, those who are posting those "STOP SOPA CENSORSHIP" images - they've been played. The fact that SOPA is bad legislation is also true (I'll get to that) but they've still been played. The fact that arguably it was the 'good guys' who played them doesn't change the fact that they were manipulated into publicly voicing an opinion that they aren't qualified to hold because they don't understand it. If you believe that the public should have a voice in public policy (hint: that's why they call it "public" policy) you need to understand what's going on and not just chant slogans that you hear on FOX News or some popular webcomic.

Some History
Hopefully, you remember or have heard of the Digital Millenium Copyright Act (DMCA) of 1996. There were complaints and protests at the time of DMCA, as well - for too many good reasons to go into - but of course it passed anyway. DMCA was unpopular with the online community because of some much-discussed provisions that made it illegal to reverse engineer the security of copy protect systems or to attempt to bypass (or even to describe how to bypass) copy protection. In spite of widespread criticism - and similar screeching about researchers being "censored" - DMCA passed. Unfortunately, DMCA was worse than most people understood it to be, because they were too busy watching the fireworks over copyright research and very few people noticed the razor blade hidden in the apple.

The razor blade in the apple was the safe harbor provisions in DMCA. Basically, what DMCA's safe harbor provision says is that a site that hosts content gets a pass for copyright violations in all user-uploaded content as long as they have a mechanism whereby the copyright holder of a stolen work can submit a takedown request and have their copyrighted work removed. The official terminology for the safe harbor is the "passive conduit" safe harbor - and it seems reasonable enough at first glance. How can a site like Youtube be expected to proactively determine what was violating copyright and take it down? Every video would have to be reviewed; they'd be out of business!  A site like Deviantart couldn't exist! Exactly! Never mind that Youtube is valued at billions of dollars because of the advertising revenue it makes from showing 99.9% pure stolen stuff. So what happens is that a media company that can afford to hire someone to search youtube for material that belongs to them, then turn that over to a lawyer-bot that submits DMCA takedown notices - well, the media company can get justice. Sort of. Because it's not "justice" if it's not fair. And you can realize it's not fair if you think about a small-time copyright holder - like, say, me. I actually first signed up for Deviantart because some weenie had taken a bunch of my images and posted them (unattributed, of course) so I had to make an account in order to submit a complaint. But I'm just one guy; I don't have employees or a posse of lawyers. Unlike Disney, if I wanted to actually protect my copyright online, I'd need to spend 48 hours a day on redbubble, deviantart, fetlife, facebook, myspace, youtube, blah, flip, boo, whatever - a billion websites that exist to re-host content, a huge amount of which is violating copyright. That's not justice; that's "a system designed for the powerful who can afford lawyers." And, on the flip side of that, it's "a system designed to protect sites that host user-provided content from lawsuits." Youtube can make millions selling banner ads on stolen copyrighted material, but the copyright holder can't come along and ask for their slice of the revenues - can they? For Disney, that's no big deal, but if I got the banner ad revenue from my neko-girl pictures that are all over the interwebs, I'd be able to buy a nice shiny toy Ferrari.*  So DMCA allows you to profit from stolen material if you're big, and prevents you from recovering damages if you're not.

It's win-win-win for the powerful and it's a great big "fuck you" to the individual artists who are left with a nearly useless weapon (DMCA takedowns) to protect themselves. So, while Metallica and the music industry can pat themselves on the back for hammering a few file sharing sites what happens to the small independent artists like Ray Wylie Hubbard or Fred Eaglesmith or every single garage band that's just starting out without a big label behind them? Yeah, the US' lawmakers took care of the big companies and the lawyers and the big website and media companies - their paymasters.

Win! Win! Win!
Big business and big media were happy with DMCA because it let them club a few sites into submission and the lawyers were happy with it because they were able to form consortia that do nothing but litigate copyright claims.  Win! Win! Win! In the software industry, we saw the establishment of the Software Publishers Association, which has nothing to do with software publishers other than that it's a warehouse of lawyers who try to make claims against software pirates and, well, they pocket the settlements. So copyright became a "hunting license" for lawyers who can go to the big firms (and media companies) and say, "We'll tell you what - we'll go out there and sue a few of these bastards and really show them who's boss! It'll stop you losing so much money to piracy and it won't cost you anything because we'll pay ourselves out of the proceeds from the lawsuits!" See how that works? And now you understand why the lawyers are seeking damages of $400,000 against some single mom who uploaded a bunch of albums to bittorrent - because they can. Meanwhile, if that small garage band or amateur photographer wants to protect their copyright? There are lawyers who'll help you out, but their fee for sending a generic "cease and desist" letter start at $1,000 and go up. That's why you have someone like deviant artist Laura Jade spending 3 years and who knows how much lawyer money trying to get a porn company to stop using her portrait as the cover illustration of a DVD. Or Harlan Ellison suing American Online to try to get them to take down copies of his writings that one of their users had published in a forum.

Short form: if you steal an image from Disney, you get crushed. If you steal copyrighted work from an individual, you get away with it. Because the law isn't even-handed; it wasn't designed to be. It was designed so that the big guys would win and the little guys... aaaah, fuck the little guys.

More History
Unfortunately for the big media companies, DMCA did not give them the complete domination of the playing field that they wanted. They probably wish they could sue Youtube for damages or hold a site hostage if it didn't beg for mercy quickly enough. It's not enough that they can get the government to shut down a site like megaupload.com. I'm not sure what is "enough" but the next step was SOPA and PIPA.

You need to understand, SOPA and PIPA are not about censorship. They are about further tilting the bias of the internet in favor of large corporations and government privilege. Because, make no mistake about it, the government is perfectly happy to see big companies expanding their power over the internet, since that also (by extension) expands the government's power-by-proxy over the internet. If you were awake when the US Government tried desperately to shut down Wikileaks, you would have noticed that the first weapons in their arsenal that they deployed were by getting banks to interfere with Wikileaks' money supply. The government/corporate connection is strong here, and the reason that the government is able to sweet-talk big corporations into helping it out is because the corporations stand to benefit as well from a "you scratch my back, I'll scratch yours" arrangement.  And that's why, if you were wondering how the US Government could seize a site like Megaupload when Megaupload is in Hong Kong.

On the bright side, Disney hasn't built its own army, yet.
On the not-quite-as-bright side, Disney doesn't need to, because it can use the US' Army whenever it needs one.



(gosh I love photoshop!)

The Scandal
The scandal of SOPA isn't really anything to do with the (admittedly shitty) piece of legislation. The scandal of SOPA is that it's been obvious from the beginning that we, the people, have no interest in this legislation, whatsoever. The people who are strongly supporting it in the US Legislature are in the pocket of lobbyists and, right now, the biggest lobbyist in favor of SOPA is the multi-million-dollar-per-year-salaried Chris Dodd of the Motion Picture Association of America (MPAA) - a former senator. A senator who once, apparently, said he'd never become a lobbyist. The scandal, if you will, is that anyone gives that motherfucker the time of day - but, equally obviously, his former comrades who pushed the legislation, did. It's yet another example of the egregious effect of money on the political process.

The secondary fallout from that scandal is that the media has largely let the real scandal blow by, in favor of talking about what a darned shame it is that SOPA is such a bad piece of legislation - as if it suddenly appeared on the docket after having been left there by space aliens.

Lastly, as a taxpayer, I'm disgusted by watching the lawmakers scurry like cockroaches when the kitchen lights are turned on. Last week they were all in favor of SOPA but this week they're all against it. Because SOPA got attention in the news and a lot of people obviously didn't like it. The subtext message here is "if you hadn't noticed, we'd have fucked you." Just like they did with DMCA. Only harder.

So, I don't give a damn about SOPA. I give a damn about a broken political system in which the people's "representatives" are for sale to the highest bidder. It is why, for the record, I do not think democracy is a good political system - especially not a representative democracy. If you think representative democracy works, ask yourself how accurately those people in Washington "represent" you. Then ask yourself if you woke up last year thinking "copyright needs to be strengthened in order to protect Hollywood!"

Here's the last bit of the scandal, in the form of a prediction: SOPA will pass more or less as it's currently constructed, eventually. In a year or so, key provisions will get tied to a budgetary continuing resolution and the president will wring his hands, blame whichever party he's not from for being obstructionist, point to a different piece of porkbarrel spending (but not a big one) and sign the damn thing. And, by then, all the clueless chumps who are currently putting "STOP SOPA CENSORSHIP" deviations up on DA will be finishing Skyrim2 or - oooh, shiny thing!

Now, the Censorship
That covers the scandal and the hypocrisy. Now let's talk about stupid censorship. Specifically, the silliness of complaining about censorship on Deviantart - a site that has its own draconian and absurd regime of self-censorship that is above and beyond what the law requires, and which maintains a system whereby people can anonymously request images be censored as "inappropriate." We all know that Deviantart's rules, which are already arbitrary, are applied in an arbitrary fashion - if you're going to complain about censorship, kids, delete your Deviantart account.

Under US law, at present, there have been attempts to criminalize making erotic material visible to minors. In the US, out in the real world, those legislative attempts have been universally stomped on by the judiciary, including our fairly conservative Supreme Court. I'm pleased that the justices on The Supreme Court can read The Constitution and are still trying to enforce it. The Department of Justice has stumbled repeatedly (basically, smacking itself down) trying to define explicit content adequately. For more information on that, you may want to read this journal entry I wrote back in 2009:
mjranum.deviantart.com/journal…

I have no problem with Deviantart's saying "it's our site; we can make up our own arbitrary rules." I'm even OK with Deviantart saying "and, we enforce our arbitrary rules, in an arbitrary manner." Yep. That's censorship. If you're going to do it - own it. But once you play the censorship game even a little bit, you forfeit your right to complain if someone ever infringes your freedom of expression. Want to see my head explode? If I ever see one of the people who put DA's censorship rules in place - complain about censorship.

Another form of censorship is the constant comments such as "meh. this picture is only on the front page because it's got boobs in it" or "this is porn not art" etc - the message, again, is that certain forms of expression are inappropriate or lesser than others. When you start applying social pressure in an attempt to get someone not to express themselves in a way that you don't like, you're preparing the ground-work for censorship: the next step is to have a little button that you can click that just makes all the bad stuff you don't like go away.

Got it? Every single deviation on Deviantart has already been censored. If that doesn't bother you, you're on the wrong side of history but you're blowing with the prevailing winds.



(* I don't care about that. Like most small artists I decided when I put my stuff on the web that I was letting it go and that the reward I'd get was maybe a few "nice shot!" emails. But that was a decision that I was forced to make - unless you're lawyered up like Disney you're left with the "if you put it on the web, you gotta expect to get ripped off" argument. That would be a reasonable argument if it applied evenly to everyone. But it doesn't. The little guys can have their case heard in the court of "fuck you" and Disney gets to rewrite legislation for Congress.)