PublishedNovember 18, 2011

Thai for Two?

What do the MPAA, the RIAA, the U.S. Congress, and the perennially human-rights-challenged Thai government have in common?  A similar taste in misguided regulations with draconian flair.

In Thailand, the Computer Crimes Act holds a website operator responsible for any content posted on his or her website.  The country also has strict lèse majesté laws that make it a crime to criticize the Thai monarchy.  So when anonymous users posted comments deemed offensive to the Thai monarch onChiranuch Premchaiporn’s website, and according to the Thai government, Ms. Premchaiporn did not remove the offending comments quickly enough, she became liable for the content.  She now faces 70 years in prison.

The U.S. government, a strong advocate of Internet freedom abroad, is now following Thailand’s lead at home.  The Stop Online Piracy Act (SOPA), is quickly making its way through Congress.  Similar to the Computer Crimes Act, SOPA would hold websites liable if they took “deliberate actions to avoid confirming a high probability” that content on the website does not infringe on the intellectual property rights of others.  This includes user-generated content and the content of sites it links to.  With its unclear language and overbroad reach, this legislation can easily create a de facto pre-screening and censorship regime that could put sites like YouTube and Twitter out of business, or at the very least, drastically increase their legal costs.  But the real concern should be the next YouTubes, Twitters or Vimeos that do not have legal departments.

The issue is further complicated by the big content companies’ draconian interpretation of the underlying copyright law.  Now, merely posting a video of your baby dancing on YouTube with a song playing in the background may get you in trouble with the recording industry.  And because the law offers immunity to companies who make an effort to comply with this vague legislation, websites will be encouraged to apply filtering and censorship broadly, ultimately censoring legal content just to be on the safe side.   And for those who do not think that this legislation will be abused, remember, these are the same guys who likened the VCR to the Boston Strangler and said that there is no value to works in the public domain (Shakespeare?).

Certainly, Internet piracy is something that should be targeted, but certain stakeholders, at least according to the Government Accountability Office, inflate piracy statistics and exaggerate how badly they are doing to encourage sweeping legislation that really threatens our economy.  The provisions in SOPA that prevent financial companies and advertising operators from doing business with infringing sites can effectively eliminate most major websites dedicated to infringement.  This approach was able to shut down Wikileaks. But making search engines and websites liable for all the content catalogued by their search bots or uploaded by their users, as SOPA would do, goes beyond “effective” and into “egregious.”

The safe harbor provisions of the Digital Millennium Copyright Act (DMCA), which require website operators to remove infringing content when notified by intellectual property rights holders, have allowed Silicon Valley to create companies such as Google, Facebook, YouTube, and Twitter to name a few. Why change this now?

The U.S. Congress, which actually did help create the Internet as we know it today by turning it to over to the public, should be looking to do everything it can to stimulate the Internet economy.  Instead, it appears they are ready to regulate it into the ground and give our foreign competitors a leg up on Austin, Boston and Silicon Valley.  As the Asia Internet Coalition, a trade group of Internet companies doing business in Asia, noted, Thailand’s approach threatens to have a “significant long term impact on Thailand’s economy.”   Do we really want to follow their example?

SOPA would be the digital era’s version of the Smoot-Hawley Tariff or the Gramm-Leach-Bliley Act—a myopic, special interest driven piece of legislation that would wreak havoc on the greater U.S. economy.  Hopefully, Congress listens to more than just Hollywood before it goes the way of Thailand.

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