David R. Henderson  

A SOPA Analogy

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I've been trying to understand what the Stop Online Piracy Act (SOPA) would or wouldn't do. Would it simply protect intellectual property? Then I'm somewhat sympathetic. Why just "somewhat?" See my previous post and the links therein. Or would it do something more. Here's an analogy from Mitchell Baker:

To understand more clearly what SOPA does and the range of consequences, it's helpful to use an analogy from the physical world where we all have many years of experience.

Assume there's a corner store in your neighborhood that rents movies. But the movie industry believes that some or even all of the videos in that store are unauthorized copies, so that they're not being paid when people watch their movies. What should be done?

SOPA/PIPA don't aim at the people trying to get to the store. SOPA/ PIPA don't penalize or regulate the store itself. SOPA and PIPA penalize us if we don't block the people trying to get to the store. [Bold mine.]

The solution under the proposed bills is to make it as difficult as possible to find or interact with the store. Maps showing the location of the store must be changed to hide it. The road to the store must be blocked off so that it's difficult to physically get to there. Directory services must unlist the store's phone number and address. Credit card companies would have to cease providing services to the store. Local newspapers would no longer be allowed to place ads for the video store. And to make sure it all happens, any person or organization who doesn't do this is subject to penalties. Even publishing a newsletter that tells people where the store is would be prohibited by this legislation.

This is what SOPA and PIPA would impose in the online world. It's very different than targeting the owner of the video store directly. The obligations to make websites hard to find apply to all citizens and businesses. Each one of us is subject to punishment and fines if we don't follow these prohibitions.

Question: is she accurate? ["She" in italics because I originally called Mitchell Baker a "he." Thanks to commenter Duncan for the correction.]

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COMMENTS (15 to date)

His analogy is basically correct, at least for DNS blocking which is one of the most controversial parts of these bills. The part you highlighted is mis-leading though. These bills only penalize us if we're actively giving directions to the store and don't stop when ordered to.

A better analogy would be if SOPA required everyone who had a copy of the offending store's phone number to erase that number and to deny ever knowing it. We'd have to edit all the phone books, change all the directory assistance databases and, if you had the number tucked in your wallet and didn't discard it, you could be subject to action.

SOPA/PIPA had many other problems. Cato and TechFreedom had a very good panel discussion last week. One hour will teach you all the basics of the law and technical implications:


Lupis42 writes:

Yes - but there's an additional point to consider: the only due process required before these penalties are imposed is the say-so of the movie industry. There is no before-the-fact independent due process. Rather, after all of the unlisting has happened, the video store would have to prove it's innocence to a court to get the penalties lifted.

tim writes:

I think its a reasonably accurate analogy. And after all those draconian actions have taken place against a website suspected of piracy or even pointing to a website suspected of piracy - it still doesn't put the slightest dent in piracy.

Duncan writes:

He is in fact a she, although the mistake is very understandable.

Ray writes:

It is a reasonable analogy, worth pointing out that it's a lot easier to close the brick and mortar store than it is to shut down the equivalent on the digital side.

The brick & mortar store can't pick up and move somewhere outside the reach of the country it occupies' law enforcement, certainly not quickly like sites like The Piratebay can.

I get the point being made, it's just not an apples to apples comparison with "physical" intellectual property.

John David Galt writes:

It's worse than that description. To extend the metaphor to cover the facts: not only stores, but also garage sales and swap meets would have to be made inaccessible on Hollywood's request -- and the process doesn't even require any real evidence that unauthorized copyrighted works are available at the targeted site: in effect its owners are guilty unless proven innocent, and get no due process.

A better analogy might be a country like Syria, where most public gathering places have been shut down just to avoid the possibility that dissidents might discuss their views there. This is something that must not happen to the Internet, even if the alternative is that all of Hollywood were put out of business by infringers. (Not that I believe it would happen, though a boycott of them may be worthwhile now.)

Ray writes:

I like the black market analogy a lot better. Much more agile and capable of drifting off into the ether, and difficult to track down the organizers behind them to put an end to the behavior.

Ken B writes:

The analogy I like is criminalizing footnootes. Actually it is even worse: asset forfeiture for footnoting.

John Thacker writes:

The analogy is accurate (I work with network architecture.) The lack of due process is also scary-- people are liable for not blocking access long before any convictions or indictments occur, simply upon a warning that is directed by the rights holder.

There are some alternate bills (like Wyden and Issa's OPEN) that attempt to protect intellectual property without the third party effects.

There may, in fact, be no effective way to prevent piracy without such draconian efforts. However, I cannot support the third party liability.

Contra Mankiw, I feel that there was a lot of knee-jerk support for the bills. They're much worse than originally realized if you read them.

Becky Hargrove writes:

The crazy thing for authors: ultimately authors with little or no money won't be able to tell anyone, in print at least, who actually inspired them the most. How exactly is that helpful to anyone? Books I like the most, I pore through the references for the authors I want to read, not to mention pay for.

Daublin writes:

To extend the analogy, it's not just that the store is made to disappear. The whole neighborhood goes with it. DNS is a broad brush.

rpl writes:


The analogy is pretty good, or at least as good as analogies between physical things and computer things get. There is one important piece missing.

As Steve F. points out above, you would be required to remove the offending store's listing from all phone books. However, some phone book makers are located outside of the United States and presumably would not comply. Therefore, your mail carrier would be required to go through your phone book and redact any forbidden listings. (Ignore the impracticality of doing this with a physical phone book -- it's quite possible for the internet equivalent.) The problem is that if your mail carrier can tamper with the directory listings, then so could anyone else ("phonebooks" on the internet get handled by a lot of people). They might, for instance rewrite directory entries to mislead you into thinking their phony website is your bank's website. (This may sound esoteric, but attacks of this sort actually exist in the wild.)

There are ways to protect against tampering with the directory lookups, but they would necessarily prevent the mail carrier from doing SOPA-ordered redaction. To stretch the analogy even further, they amount to wrapping the phone book in a tamper-evident seal when it leaves the printer and telling people not to trust anything in it if the seal is broken when the book arrives. SOPA would effectively make this practice illegal, making it impossible to protect against these sorts of attacks.

Ok, end of analogy. Basically, SOPA is evil because in its pursuit of stamping out infringing activities, it doesn't care how much collateral damage, in the form of legitimate activities blocked and innocent users harmed, it causes along the way. In particular, it provides tools that could be misused for censorship, and it asks us to have faith that the people in control of them will never misuse them in that way. I'm just not that trusting, I'm afraid.

Content-producing industries need to get over the idea that they must stamp out every instance of infringement in all places at all times in order to survive. (A good start would be to stop pretending that every infringement is necessarily a lost full-price sale. Announcing trillions of dollars in bogus "losses" tends to drive people into a frenzy.) All the industries really need to do is to ensure that buying content online is enough better (in terms of ease and legal risk) that consumers who are inclined to be law-abiding (most of them!) would rather just buy the content legally. It's true, some people will still get the content illegally, but the industry will survive, without running roughshod over users who have done nothing wrong.

Duncan writes:

I was too lazy the other day to include a link confirming Mitchell Baker's sex.

Lee Kelly writes:

I can't wait for the massive increase in the quality of Hollywood movies after SOPA is passed.

FJS writes:

Yes, this analogy is generally correct.

But it's ignoring a very important and substantialy caveat: the brick and mortar store is not subject to US jurisdiction.

Imagine instead a store located in an embassy. They advertise in the phone book that they offer copyrighted materials for low-low prices. They also advertise on TV and radio, giving out only their name and telling people to find the store using their GPS. Inside the store are advertisements for other products (Coke, Jiffy Pop & M&Ms), and the store accepts credit cards.

How would you combat this type of piracy?

SOPA gives copyright owners the authority to prevent the GPS from associating the store name with the physical address (people who know the address can still walk in).

Next, it gives them the authority to stop Coke, Jiffy Pop, and M&Ms from advertising their products in the store.

Finally, it gives them the authority to stop VISA from processing payments to the store.

This is the conceptual framework of SOPA without going into the details.

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