2010-09-23

Presumed Innocent Unless A Digital Pirate

There's a new article (Gautham Nagesh, The Hill) that talks about a new bill being put through Congress regarding tougher restrictions on file sharing. Let's go through it, piece by piece.
Members of the Senate Judiciary Committee including chairman Patrick Leahy (D-Vt.) and Orrin Hatch (R-Utah) introduced the Combating Online Infringement and Counterfeits Act, which would create an expedited process for DoJ to shut down websites providing pirated materials.
“Each year, online piracy and the sale of counterfeit goods costs American businesses billions of dollars, and result in hundreds of thousands of lost jobs,” Leahy said in a statement. “Protecting intellectual property is not uniquely a Democratic or Republican priority — it is a bipartisan priority.”
I'm more than a little wary of giving the government more power in dealing with issues relating to digital copying and such, especially if that increase in power does not come with increased checks and balances or caveats limiting such actions in some way. And really, Mr. Leahy? Online piracy results in "hundreds of thousands of lost jobs"? Doesn't copying and modifying works digitally open up new avenues of creativity and progress? How could that possibly cost jobs?
The article goes on to talk about how the DoJ could obtain a court order to shut down an infringing site by showing "'substantial and repeated role in online piracy and counterfeiting'". It would then require the site owners "to petition the court to have the order lifted".
First of all, I think it's misguided (at best) to lump together piracy and counterfeiting. I don't think torrent sites deal with counterfeit goods. Oh, wait, I can think of a loophole: the site would have to deal with "online piracy and counterfeiting", so if it only deals with online piracy, it can't be shut down. Yay! Except that the media lobbies will likely convince the DoJ that both are somehow occurring simultaneously and that any amount is "substantial and repeated", so the site must be shut down (even if many of the torrents are legal, like those of Linux distributions). Oh, think of the poor artists!
The bigger problem I have with this, however, is that it essentially turns the presumption of innocence on its head. If this was a regular case, it would be on the plaintiffs to prove beyond a reasonable doubt that such infringement occurred and that it caused huge damages and that this is why the site should be shut down. Now, the site owner (who may or may not know what activity is going on between users of the site) bears the full burden of proving innocence. Even nastier criminal trials have presumption of innocence and shorter jail sentences/lesser fines. Is copyright infringement really that bad? (I agree that counterfeiting of physical goods isn't a good thing especially for products like foods and medicines, as these counterfeit goods could potentially be life-threatening to consumers. That said, how are copies of songs life-threatening to anyone?)

The article concludes by describing the Chamber of Commerce's (one of the primary groups involved in introducing the bill into Congress) estimates of losses due to piracy, and quotes a sponsor of the bill on its benefits to all parties involved. Please tell me again how piracy costs jobs, and please tell me with a straight face how piracy is causing financial losses when the MPAA itself admits that the movie industry has been growing at a record pace this past decade; finally, please do tell me how consumers benefit from even more draconian restrictions on online content. I'd love to know!

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