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Monday, October 4, 2010

COICA - They're coming to take our internet... again.

So I opened up my email this morning and had not one, not two, but three dire and urgent warnings about the proposed fascist takeover of the internet.  Just a glance at the subject lines suggested that we were on the verge of becoming the next China, Iran or North Korea.  This understandably concerned me on several different levels (not the least of which being that I don’t care for Korean cuisine), so I took it upon myself to do a bit of research.

I mean, what the heck is that?

The culprit, as it turns out, is a Senate proposal called S. 3804.  This bill, “deceptively” called the “Combating Online Infringements and Counterfeits Act” or COICA, was described as follows in one of my numerous alarming emails:

“This is the kind of heavy-handed censorship you'd expect from a dictatorship, where one man can decide what web sites you're not allowed to visit. But the Senate Judiciary Committee is expected to pass the bill this week -- and Senators say they haven't heard much in the way of objections! That's why we need you to sign our urgent petition to Congress demanding they oppose the Internet blacklist.”

Censorship?  Blacklists?  Well, I thought, we must get to the bottom of this.  The bill was cleverly disguised as an effort to curb rampant online copyright infringements by giving the federal government the power to ban urls that “engage in piracy and copyright infringements (which threaten) to cause far-reaching harm”.

Seems fair enough on its surface, right?  To those people who invest money and effort in crafting music, artwork, photography, movies, short films, blogs, poems, stories, novels or anything that might be described as “intellectual property”, it might seem something of a godsend.  After all, right now the only thing prompting people to actually pay for movies is ignorance, outdated morality and/or a slow internet connection.

$4 worth of movies right there.

Opponents of the bill warn that it is a foot in the door toward a complete government takeover of the internet.  It provides them that all important first step toward determining what content we can and cannot illegally download and once we give them a bit, they’ll take a terabyte.  A veritable who’s-who of internet pioneers even drafted an open letter to congress warning that “an incredible range of law-abiding sites can be blacklisted under the bill” and “this legislation will risk fragmenting the Internet’s global domain name system, create an environment of tremendous fear and uncertainty for technological innovation and seriously harm the credibility of the US in its role as a steward of key internet infrastructure.”

Of course, they fail to say how this transformation might occur.  They also neglect to mention that (a) there is already plenty of uncertainty in the fields of technological innovation (kind of the nature of the business, really) and that (b) the US has very little international credibility as a steward of key internet infrastructure.

America's International Credibility

Now, I’m not informed enough to say whether these grandiose fears are justified or not.  There is certainly nothing in the language of the bill to warrant them, but I am leery of anything that earns the support of Orrin Hatch (R-Utah).  Perhaps this is the beginning of the end and perhaps (and far more likely) it is not.  But I didn’t post this blog to argue the details of the bill nor even whether the legislation is necessary.  I’m just sick and tired of hearing that every bill that remotely involves the internet amounts to censorship.

Net neutrality has come under serious fire in the past few months and that has internet users understandably riled up.  The idea that payola could make its way into ISPs is a very serious concern and could spell the death of the internet that you and I have come to know, love and illegally download other people’s copyrighted intellectual property on.  There are legitimate concerns here and they should be taken seriously.  But does this bill rise to the level of community outrage that is has created?

It is not realistic to battle against every attempt to legislate the internet.  Billions of dollars are being lost every year to online piracy.  Some speculate that Avatar might be the last mega-budget blockbuster because of the declining receipts both in the Box Office and in home rentals.  Sure, movies are still setting new box-office records, but that’s only because they’re charging us $15 a ticket these days.  Actual attendance at the theater is down considerably over the last ten years and there is little hope it will rise again.  Think about it like this: As budgets go down movies will become even worse than they are now.

Stealing movies from the internet is not a right.  Hell, it’s not even legal.  Basically this proposed Senate bill would simply give the federal government the ability to enforce existing laws by shutting down websites that are engaged in illegal activities.  If somebody wants to protest this law, it would be easy enough to do so under the “It’s stupid and it won’t work” argument without having to bring in accusations of totalitarianism and dictatorship.

I am far more concerned about the ridiculously inflammatory language used to describe this bill than I am by the bill itself.  The Huffington Post, normally a bastion of impartial journalism (I’m kidding… HuffPo is to news what McDonalds is to food) warns that the bill’s language is too vague, giving the Senate the power to blacklist any website where counterfeit goods or copyrighted material are "central to the activity of the Internet site".  And apparently there is a problem here?  Look, don’t get me wrong, I’m not looking forward to having to get actual rights to use the pics on my blog, but as a creator of intellectual property, I’m somewhat comforted by the idea of this law.

Respect online copyrights.

As it stands, the internet is the wild, wild west when it comes to copyrights.  If you can’t steal your favorite movie you just need a newer computer.  Up to this point I’ve heard only virulent objection without proposed solutions.  Should we continue to weed out the remaining incentives for writers and directors until all films have the impeccable quality of a “Charlie bit my finger”?  Should we look at new ways of protecting against these types of massive downloads?

Or should we throw our hands into the air and start screaming that the thought-police are coming?  Thousands of tweets are going out today that simply say “The Senate is passing a bill to censor the Internet and nobody’s spoken out against it yet!” along with a link that directs you to some online petition or another.  Of course, the fact that thousands of these tweets are going out somewhat diminishes the idea that “nobody’s spoken out against it yet”, but why interject facts into perfectly good paranoia?

There is a legitimate problem with legitimate financial consequences going on here.  We could have a mature discussion about it, or we could dress it up in terms like “blacklist”, “fascism”, “censorship” and “dictatorship”, but is that going to help solve the problem? 

His own company provided me with this pic...
And if we want to complain about the proposed law, let’s at the very least focus on the real problems of it being untenable, unenforceable and misguided.  Several weeks ago the feds forced Craig’s list to shut down their prostitution providers pages (I’m sure that’s not what they called them, though for the life of me I can’t imagine why not) and all prostitution stopped at once, nationwide.

No… wait… that’s not how it worked at all.  The e-hookers simply moved their ads to other sites, which is precisely the result we could expect from COICA.  The old fuddy-duddies in congress aren’t typically cutting edge when it comes to the internet (does the term “series of tubes” ring a bell?) so it’s hard to imagine that this law would be able to keep up with us free-wheeling internet savvy pirates.  If they shut down You-Tube (about as likely as You-Tube deciding to shut itself down) we would simply move to another less known and less regulated site.  In fact, that’s already happening now that You-Tube is patrolling their site to remove copyrighted material.

The way the law currently reads I, as owner of a website, am completely absolved of any obligation to concern myself in any way with what people put on my site.  That is a ridiculous business model that cannot last.  All the COICA bill will really do is put some teeth behind it the next time the feds have to tell Craig’s list to stop being digital pimps.  It will incentivize the site operators to be a bit more vigilant about ferreting out the illegal content and it will probably result in significantly fewer copyrighted movies, songs and videos being illegally uploaded.

But it will also shut down all the bit torrent sites.  It will actually inhibit our ability to steal stuff with impunity.  I can’t help but feel that anyone dressing this up as a freedom of speech issue is in denial about their own complicity when it comes to rampant download theft. 

Ah, the innocence of my youth...
(we ignored it then, too)
So let’s save terms like “Internet Blacklist” for a time when they make sense.  Sure, we’re talking about blacklisting certain urls here and thus it is technically an apt term, but it carries connotations with banning content for political reasons.  If NBC got in trouble for playing the whole Star Wars trilogy without securing 20th Century Fox’s permission, we would not say that NBC was being censored.  Until they are talking about banning things for being too un-American or too forward thinking I’m not going to concern myself too much.  Let us not confuse our right to express ourselves with our right to watch streaming downloads of movies that have not even been released in theaters yet.

And if you’re unconvinced, keep in mind that eventually we will need this fervor because eventually the government might try to do what it is that we are currently accusing them of trying to do.  If we scream “censorship” every time they try to pass an internet related law it is going to lose some of its bite when we actually have to stop censorship.

Aaron Davies

Please pass this blog along.  Mass hysteria will surely ensue if you don't and you will feel responsible.


  1. I was surprised and angered to learn about this law and landed on your blog after clicking through from a Crunchgear post on the subject. And while I usually sympathize with the sentiment of not instantly declaring everything "fascism" or the end of the world, I walked away unconvinced by your analysis.

    The problem comes in not because copyright infringement isn't happening but because it's actually much more common than you probably realize. Sites like The Pirate Bay or others that offer films or music for download are just the low-hanging fruit of copyright infringement.

    Take the top 3 sites on the web according to's rankings - Google, Facebook and YouTube. Google's entire business model is built on the reuse of other people's content. Aside from the issue of aggregated news, at what point does simply excerpting content from someone's site's (while also displaying an ad) become technically illegal? Under a strict reading of things, shouldn't Google be prohibited for displaying a photographer's copyrighted photo in their search results without permission?

    What about YouTube? It's hard to bring up a single page of search results without videos that contain copyrighted material, whether its illegally uploaded music videos or clips from cable news. YouTube does play a game of "whack a mole" with its users, but has shown itself more or less unable to stop it completely.

    A site like Facebook or, to take another example,, owned by CBS, is rife with copyright infringement, because they allow (and encourage) users to upload pictures, which neither they nor the site necessarily own the copyright to. How many user avatars on Facebook and other message boards are actually someone's artwork the user doesn't have the rights to? And blogs that quote other sources are often chock full of infringing content - because technically it's illegal to paste more than a paragraph or two of text from someone else's news piece.

    In fact, the irony seems to be lost on you that in this very blog post, you've embedded several photos and illustrations that you obviously don't have the right to use. iStockphoto doesn't allow people to repost their images. It's not like no one cares about this either - iStockphoto's parent company, GettyImages, is known to actively track down and serve legal papers to people who use their images without paying.

    The point I'm trying to make with all these examples is that targeting only one kind of copyright infringement really ISN'T a case of enforcing the law fairly. It's enforcing the law in a very narrow way to benefit those who are powerful enough to get what they want. It ignores the more fundamental issue raised by all of this, which is that the invention of personal computers and internet basically guarantee that copyright infringement will happen, and that the whole way we deal with these concepts is incompatible with what technology allows us to do. This doesn't provide a quick and easy solution, but it does suggest looking at the issue in a more comprehensive way.

  2. Excellent point and well said. I wouldn't argue with a single point that you make here, but I do think it's important to make a distinction between the types of infringement we're talking about. In a perfect world, all copyrights could be shielded, but as you say, the very existence of personal computers and an Internet essentially precludes that.

    All that being said, if the financial incentive was removed from photography, there would still be good photos. You might have to search farther and they may not be as crisp, but there will still be photos. It takes only one persons labor and only a modicum of expertise to produce a beautiful photograph and the artistic nature of the medium is such that dedicated experts would still do photography in their spare time and create (far fewer) works of photographic art as well.

    Music is the same. Even without the financial incentive, individual musicians will still produce songs and with only a modicum of expertise they can be recorded in a manner indistinguishable from professional works (except to professionals). While you might have to search farther and except a bit less, beautiful music would still exist.

    I won't belabor the point, but clearly the same can be said for blogging or poetry or digital artwork.

    With respect to movies and software, I don't think this holds true. To create a good film or program, it requires the dedicated effort of a number of people. A good script without a good director only goes so far. A good director and cinematographer can rarely overcome bad actors. A film requires the cohesive efforts of a number of people and takes far more total hours to complete than the writing and recording of a song.

    If you remove the financial incentive from cinema, there will cease to be beautiful movies. I am nowhere near as passionate about software and thus am unable to add detail, but clearly the same is true for that profession as well.

    Perhaps this is an arbitrary distinction, but still I feel it a valid one. Our world culture stands to lose more from the uninhibited theft of films and programs than it does from the uninhibited theft of photos, blog excerpts and music. In my mind, that justifies an uneven application of new legislation to combat what I perceive to be a greater crime.

    Thank you for your comment. And so you know, the irony of the iStock photo sitting atop the comment about respecting online copyrights was not lost on me. I try to keep even the serious elements of my blog humorous where possible. I agree that this is a flawed piece of legislation and it will probably be rightly defeated. I do feel that 97% of everything I found online was wildly biased in their reporting of the law and wrote this piece more in reaction to the (untrue) claims that there was no due process in the law or that it was somehow ambiguous enough to eventually be used to shut down You-Tube or Facebook.