The Stop Only Piracy Act (SOPA) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP Act, PIPA) are two bills that were put before the US House of Representatives and Senate in 2011. The two bills are supposedly designed to defend owners of copyrighted content, trademarks and pharmaceutical patents in their long-standing struggle against “pirates”. But there is a lot more to it than that!
Three pieces of legislation affecting digital freedom have recently raised big controversies in the US and the rest of the world: SOPA, PIPA and ACTA. I would like to introduce the subject of this article, online liberties and repression, on a personal note. I just had two interesting, if unpleasant, direct experiences somehow related to this matter.
I work as a software developer in an Internet company, and I am a shop steward there. When I heard of the protests against SOPA-PIPA, I sent an e-mail message to the management suggesting that the company should send a press release against this proposed bill, because it is a menace to its core business and the work of my colleagues. Unfortunately, the company has not taken any official position.
A few days later, I was called by the Italian police. Apparently, a Fascist billionaire, who is the national secretary of a far-right party, filed a case in 2007 because he felt “defamated” by a series of articles on the website of the local Communist Youth in my city, Pavia. This individual was put under arrest in 1980 for his involvement in far-right extremism, but escaped to Thatcher's Britain where he became very wealthy. He came back in 1999 and in 2008 managed to become a Member of the European Parliament.
I am currently under investigation because I am suspected of being the owner or the administrator of the website. Billionaire involved in violent Fascist groups: zero days in prison, career as an MEP. Suspected administrator of a small left-wing website: under investigation, lots of money spent on lawyers even if later to be proved innocent. You get the picture.
What are SOPA and PIPA?
The Stop Only Piracy Act (SOPA) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP Act, PIPA) are two bills put before the US House of Representatives and Senate in 2011. Their original versions included provisions to hugely extend the firepower of owners of copyrighted content, trademarks and pharmaceutical patents in their long-standing struggle against “pirates”. This was pursued by broadening the definition of the primary offenders and including also a whole series of secondary targets regarded as facilitators of the copyright infringement: search engines, user-edited or social websites, online advertising networks, producers of circumvention software, even Internet service providers (ISPs).
Any website that “facts or circumstances suggest is used, primarily as a means for engaging in, enabling, or facilitating” the violation of intellectual property would be treated as a rogue site. This could allow entire websites to be shut down just because they contain one page of illicit content, or even just because they can make it easier to access material that somebody believes to be their property. If such a website is operated abroad, all other US websites have to collaborate with the copyright owner in enforcing an immediate digital blockade against it. This means, for example, that links to it have to be removed by Google or Facebook or Twitter, or they can be sued too. Civil liberties associations have compared this system to the “Great Firewall” used by the Chinese government to control and restrict the Internet in China. Instead of state control exerted with administrative means, here we have control obtained by forcing the collaboration of private companies.
Among the supporters of these measures we find major labels and big names of the entertainment industry, like Disney, Sony, Warner; pharmaceutical and cosmetics multinationals like Pfizer, L'Oreal, Estée Lauder; producers of goods that are strongly based on the brand, like Nike or baseball and football leagues who make money with merchandising; book publishers like Penguin and McGraw-Hill; scores of professional and trade associations like the Motion Picture Association of America, the Directors Guild of America, the Fraternal Order of Police or the American Bankers Association.
And unfortunately, the AFL-CIO, the Teamsters, the International Brotherhood of Electrical Workers and other organisations of the labour movement have also expressed support for the bills, following the bad tradition, typical of the worst side of American unionism, of illusions in the possibility of defending “American jobs” by standing behind the interests of the bosses of one's own industry. Even Apple and Microsoft were more or less openly in the supporters' list but switched side after opposition started to build up – revealing a greater sensibility to the opinion of the masses than some trade union leaders!
In an attempt to stifle opposition, since December 2011 SOPA supporters have started to limit its scope chopping out the most controversial parts, e.g. excluding US-based “pirates” (already covered by other, more effective legislation) and ISPs. US-based websites providing links, e-commerce facilities etc. to foreign pirates would still be included. This diversionary manoeuvre did not succeed other than in exposing the weakness and incompetence of the pro-SOPA front.
On January 18th, 2012, a worldwide protest action was launched in order to stop SOPA from being passed in the lower house of the Congress. Week after week, the growing pressure against SOPA was such that even before the protests it was decided to postpone the discussion until a new consensus can be formed. On January 16th, Barack Obama threw his political weight on the scales by declaring that he would veto any legislation that could negatively affect free speech. Many believe that SOPA and PIPA are now dead.
The form chosen for the protests was essentially through a symbolic online blackout (web strike), the posting of informational material on the web to raise awareness on the issue, and an appeal to US voters to contact their congressmen in Washington, but there have also been physical demonstrations, like the protest rallies held in New York City, San Francisco and Seattle.
The protest day was marked by a very large participation by individual blogs and the websites of non-profit organisations and activist networks (e.g., the Mozilla Foundation and the Free Software Foundation). Reportedly 115,000 sites blacked out at least their front page, often including links to detailed explanations of the measures protested against and appealing for action.
How Wikipedians learned to fight
The most notable case of blackout was Wikipedia in English. This famous online free encyclopaedia is collaboratively edited by the users themselves and has editions in 283 languages, the largest one being written and maintained by the English-language Wikipedian community. Each of these online communities has developed democratic rules to organise the involvement of its members in all decisions, and it is through long and open internal discussions that the English-language Wikipedia chose to take action so boldly. At http://en.wikipedia.org/wiki/Wikipedia:SOPA_initiative anybody can read the debate and the arguments used by different users in support of or against taking action. For 24 hours, all pages of the website were replaced by a black screen explaining the reasons of the protest that was accessed 17.5 million times during the day. The importance of Wikipedia in the everyday life of millions of people turned this black page into a mighty statement against SOPA-PIPA.
By showing voluntarily in a controlled and organised way the potential extreme consequences of what they were criticising, the Wikipedians applied a typical form of protest. This was similar to the concept of a workers' strike in that it highlighted the value of the editors' (unpaid) work by not delivering it for a certain amount of time. There was a serious difference, however, with most workers' strikes: no private commercial company had its profit directly affected. Notice, however, that not all workers' strikes hit the profits of a private company; take a teachers' strike or the strike of a company in deep crisis – the counterpart might actually be economically benefiting by such strikes, although hurt in broader political terms. We, the Marxists, support and participate in several industrial actions that have solely the purpose of hitting the normal functioning of the capitalist economy in an indirect way, and raising awareness among other workers.
The successful Wikipedia strike of January 18th was possible thanks to the example of the blackout launched by the Wikipedia in Italian on October 4th, 2011 against the DDL Intercettazioni (Wiretapping Act), a typical example of legislation of the Berlusconi era: since a lot of embarrassing phone conversations by Berlusconi and his entourage were frequently leaked to newspapers, this draft bill would ban the media from publishing them. On top of that, and without any relation to the wiretapping issue, if anybody felt that a website was offending them, even if the site's allegations were true, they would be given the right to force the website to publish in the same place a non-editable and non-commentable reply written by the person who didn't like the original content. This would clearly impair free speech and criticism of the mighty and wealthy, block the common practice of free blog comments, and make a user-edited website like Wikipedia impossible to run. The paragraph of the law targeting websites was properly nicknamed ammazzablog, “blog killer”. Thanks to the unprecedented decision of the Italian-speaking Wikipedia community to black out the site, and to the mobilisation of countless other individuals and organisations, the ammazzablog section was removed. This successful initiative was cited by the Wikimedia Foundation as an inspiration for the larger struggle against SOPA and PIPA.
The cowardice of Silicon Valley
The conflict in the US has been often presented as a Californian civil war opposing Hollywood and Silicon Valley, i.e. the entertainment industry vs. the Internet-based start-ups and corporations. It is true that mega-companies on both sides have lobbied a lot to support their interests, and while Hollywood and the major music labels have spent much in gaining support from congressmen, Silicon Valley is today more important for the US economy than producers of movies and songs; an anti-SOPA open letter co-signed by AOL, eBay, Facebook, Google, LinkedIn, Mozilla, Twitter, Yahoo! and Zynga proved very influential with politicians. The owners and CEOs of these companies know very well that whatever little conflict they may have at times, they can always rely upon their friends in Washington. And vice versa, of course.
That is why, when it was time to move from words to action, most of these companies preferred not to lose a dollar masquerading as revolutionaries. On January 18th, Google just placed a black stripe on its logo, with a link to a petition (that, however, collected more than four million signatures). Twitter did nothing, but its CEO said he was supportive of the Wikipedia blackout. Facebook did nothing, but Mark Zuckerberg posted something against SOPA... on his Twitter account!
For those greedy corporations lobbying and complaining is OK, but encouraging an all-out political struggle is an entirely different matter, for one never knows how far it could go, particularly in the current political climate of the United States. At the end of the day, Google co-operates with Chinese censorship, Twitter has recently established the policy of complying with any national censorship legislation, PayPal accepted cutting off funds to WikiLeaks etc. We cannot trust them.
You say piracy, I say democracy
In fact, the victimisation of the whistleblower site WikiLeaks became a testing ground for a kind of “encircling” tactic similar to the one put forward in SOPA and PIPA. Besides the freezing of their account by PayPal, there was Amazon who abruptly ceased the hosting service, the domain name was revoked, the betrayal of mainstream media, etc. Julian Assange called this “the privatisation of censorship”, the same concept behind SOPA-PIPA.
The “Silicon Valley vs. Hollywood” image is a misrepresentation. What is at stake here is not only the possibility of downloading movies for free, but more serious questions that affect free speech and democratic rights. You don't give a machine gun to a kid, and you don't give censoring powers to private companies. Once the process of raising fences in the Internet along national lines starts, nobody can know when and where it is going to end. The existence of a worldwide computer network is not an irreversible conquest of humankind, and the openness and neutrality of the Internet is far from being an established fact. The Net is a battleground.
The radicalised youth and the digital activists are ready for this battle, and the Marxists are part of it too. The rise of Pirate Parties in Europe is a symptom of the mass relevance this question is acquiring. In the USA, the #Occupy movement has taken a strongly supportive stance of the anti SOPA-PIPA movement, which completely contradicts the position of the AFL-CIO. However, the official statement of the New York City General Assembly that can be read at http://www.nycga.net/sopa/ is somewhat naive in describing the whole Internet infrastructure and industry as intrinsically progressive.
In the same page, there is an interesting comment by user marc ribot. He says he's a musician and composer and complains of the economic difficulties affecting both major labels and independent artists “because of illegal downloads”. As I already mentioned, it is on the basis of similar arguments that many a trade union has supported SIPA-POPA as a way to protect American jobs. This position is one-sided, because protectionism has never been a successful way to defend the workers, being much more effective in putting local workers against foreign workers, or workers of different industries against each other (and in this case there are many more Americans working to make software and computers than those employed in the entertainment industry). More decisively, this position is also short-sighted because we all know that trickle-down economics doesn't work.
marc ribot is rightly sceptical about the collaboration of #Occupy with major Silicon Valley companies: “And since when does OWS act in solidarity with ‘leading technology companies’????
SAY WHAT???? I thought these were the 1% we were against […] there is no 99% without workers”. We agree. And later on, perhaps as a joke he actually gives an interesting hint on a possible way out from the dilemma between not rewarding intellectual work and illegalising free sharing of information: “I'm also open to more radical solutions: if OWS wants to recreate music, film and writing as ‘public utilities’, and pay all of us salaries for the work we do, like in Cuba, well then: ‘Estoy presente, compañeros!’”
This is precisely the point. “Free stuff” in a capitalist economy (as suggested by Pirate Parties and the most naive wing of the copyleft movement) cannot be the solution, but we are not going to support Orwellian attempts to make cheap operations like copying a file or burning a DVD become expensive or forbidden just for the sake of letting the capitalists profit on it. The solution is the recognition of the social character of human labour and therefore the need for collective ownership of and responsibility for all its intellectual and material creations. If this is done with control from below empowering the workers and grassroots participation in deciding how to allocate society's resources, how much we want to spend on music and cinema and on books and medicines and for fashion, well then: Presente, compañeros!
Capitalism tries to turn everything into commodities to sell them on the so-called “free market”. In order to do so, the concept of ownership must be clearly defined and the consumption of the goods must be restricted to those who pay the commodities' owners: the consumers. This poses a big problem with things that can be copied at low or no cost, like trademarked goods, patented medicines, and copyrighted digital content. If I get an MP3 file from a friend, it is not a product, it is a “reproduct”, and I'm not consuming it by listening to it. The capitalists' utopia is to find a way to reverse this process and transform users into consumers, but this is like trying to push bubbles back into stale beer.Like all utopias, they end up easily as a dystopian 1984-like nightmare.
The alternative is to eliminate the profit making motive altogether, through the common ownership of the means of production, so that they can be democratically planned in the interest of the overwhelming majority. Such a system would release the enormous productive potential of humanity which in turn would allow for proper funding of the creative activities of human beings, which are now constrained by the straight jacket of private property and profiteering of the multinational giants which control the entertainment “industry”.
ACTA: a broader attack
The Anti-Counterfeiting Trade Agreement (ACTA) is an international treaty that establishes a new supranational body (the ACTA Committee) devoted to the protection of intellectual property rights. Such an institution will work above national legislations and the countries signing up to it will have to harmonise their legislation in accordance with the provisions of the agreement.
Ironically, had a “rogue website” like WikiLeaks not existed, we would not know much about ACTA. Some details about it leaked out only in 2008, two years after preliminary negotiations between major world powers had already started. A group of 12 countries and the European Union have been involved in the talks. In 2009, private capitalists were consulted in the US, while public opinion was not informed of the matter (which shows once more who really rules the world): they were Big Pharma companies, representatives of the entertainment and software industry, hardware manufacturers such as Dell and Intel, the telecommunications giant Verizon, and a couple of anti-SOPA freedom fighters: Google and eBay...
The first round of signatures was held in 2011 by Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea and the United States. Mexico has withdrawn; Switzerland will probably sign according to the timing of its domestic procedures. The European Union signed the agreement on January 26th, 2012, but a minority of its member states haven't yet done so. Jordan and the United Arab Emirates participated in the negotiations but did not join.
Even if its most astonishing features were watered down during the negotiations, ACTA has some resemblance with parts of SOPA, but on a much wider geographical scale – the aim is clearly to extend it to the whole planet.
It gives a vague and all-inclusive definition of intellectual property rights infringement, and requires that such infringements “on a commercial scale” be declared punishable by national legislation according to criminal law (as opposed to the civil law). This means that, instead of the copyright holders having to file a complaint asking for compensation, the police can initiate investigations on such violations and potentially punish them with penalties that are disproportionate to the offense. The criteria for appropriate economic penalties are mentioned in the treaty and seem to be aimed at facilitating overestimations.
By threats of liability, it “encourages” co-operation by private companies such as ISPs, search engines, advertising and e-commerce networks, in blockading the violators and even reporting their identification data to the copyright holders or authorities. This forceful co-operation may include severing access to the Internet or online services or terminating accounts.
The concept of “fair use” exceptions for purposes of criticism, education or information is not mentioned in the treaty; therefore any usage of copyrighted material can be treated in the same way as an illicit copy. No fair use is admitted for software that circumvents copy protection for personal use of digital material.
The treaty includes provisions on strengthening border searches and submitting them to the needs of the copyright and trademark holders, substantially reducing the sovereignty of the states in the management of legal controls on import-export and introducing a sort of privatisation of borders. Private companies will be allowed to instruct the border police on what they have to block and where, and will be given information on whatever transit of goods they suspect may harm their interests, to the point of blocking them pre-emptively at the company's request. The devil is in the details: border controls “must” check “goods of a commercial nature sent in small consignments” but they “may” spare travellers' personal luggage.
Generic medicines are treated like counterfeited drugs if the patents are still valid in one of the countries who signed the treaty. This is literally a mortal blow for those underdeveloped countries that rely upon more affordable generic versions of life-saving medicines (e.g., against HIV).
The case of generic drugs is particularly scandalous because in reality Big Pharma is protecting super profits on patents which in most cases they did not even develop but were based on research done in publicly funded institutions. Most of their research funding goes to life-style drugs and even drugs for pets. Providing cheap drugs to cure tropical diseases which kill hundreds of thousands every year is not profitable and therefore they are not interested. At the same time, they are prepared to use their economic and political power to prevent poor countries from developing generic versions of, for instance, HIV drugs, even if this leads directly to the death of thousands of people. A clear case of how private property rights are in direct contradiction to basic human rights, including the right to live!
Once again, more than this or that detail of the agreement, the very concept of a supranational institution centred on the interests of private companies of the wealthiest countries of the planet being put in charge of controlling the Internet and the national borders is dangerous enough.
We stopped SOPA, we'll stop ACTA
The opposition on ACTA started to organise since the very first days of the negotiations around digital liberties associations, gained momentum with the WikiLeaks leak in 2008, but it is only now in 2012 that it is starting to really become a big thing.
On the day of the EU's adhesion to the treaty, the European Parliament's rapporteur for ACTA, the French Socialist Kader Arif, resigned from his position, attacking the undemocratic character of the procedure and calling it “a masquerade”. Politicians from Mexico, New Zealand, Slovenia and Poland have also expressed criticism ranging from perplexity to open opposition.
As a consequence of the participation of the European Union in ACTA, mass rallies and riots have taken place in countries like Poland and Slovenia. Sparked by 15,000 people in Krakow and 5,000 in Warsaw on January 25th, the movement spread to the whole of Poland in the following days, winning the support of the majority of the population.
For significant layers of the youth, influenced by different shades of radical, anarchist and socialist ideas, or more generic anti-government ideas, the idea that the state and corporations might take more control and power over our lives is scary and upsetting irrespective of whether it is our online or our “offline” life. Moreover, the growing role of social networks in political activism, even though we should not overestimate it compared to the real flesh-and-bones class struggle, renders any intervention of the state and the private capitalists in the structure and content of the World Wide Web more and more suspicious in times of deep economic and political crisis.
In an attempt to connect to the mass mobilisations, a group of right-wing Polish MPs even wore Guy Fawkes masks, the symbol of the loose network of online activists known as Anonymous, who had called for anti-ACTA rallies and defaced several websites connected with signatories of the treaty. The Prime Minister Donald Tusk was eventually compelled to suspend the ratification of ACTA.
This is just the beginning, as everything indicates that ACTA and similar issues will become an important catalyst for movements of the youth in those countries where access to the Internet is widespread, through personal computers and portable devices such as smartphones, and social interaction mediated by the Web has become a mass phenomenon. The technological competence and skills of the new generations has largely outclassed those of the lawmakers and political leaders, and it is not going to be easy to have them accept undemocratic legislation like SOPA, PIPA and ACTA.
This is going to be part of a wider movement against the power of the corporations and a system which puts private profit before the needs and interests of the majority of the population. We are ready!
A Europe wide protest movement against the ratification of ACTA has been called for this Saturday, February 11. There will be demonstrations and protest pickets in at least 20 countries and more than 200 cities.Details here: http://g.co/maps/dm6pt
Further recommended reading: