I Know, I Know, My Regard for the First Amendment is Touching and Quaint

22:25 Tue 21 Sep 2010
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The EFF bulletin covers all the salient points. Clearly a “blacklist” with many easy ways to get on it, and few to get off it, is going to create all kinds of problems with abuse. Censorship—even if done in the name of fighting copyright infringement—is a very powerful tool, and many people tend to forget that it grants powers not merely of enforcement but also of definition.

That is, the censoring authority gets to cast as wide a net as it can get away with, in the course of enforcing its mandate. At one point, copyright infringement cases would have gone to court, but that is too inconvenient now, and so shortcuts are taken instead—shortcuts which dispense with trivialities such as legal proof of infringement, of exemptions for fair use, or of consideration of how such large-scale efforts affect the culture generally.

The “COICA” bill under discussion here is in that vein. The first blacklist at least requires a court order, although I have tremendous difficulty seeing how such a thing could possibly be in keeping with the First Amendment. The second blacklist, which would get around First Amendment issues by not being technically “mandatory”, seems guaranteed to push domain blackholing through easily, without regard for actual details. The removal of a domain from the American portion of the internet seems like something that should require a court hearing and a conviction.

Even if online infringement does currently cost copyright holders vast sums of money—something I’m not convinced of—that still doesn’t mean that as a result, we have to put up with a massive online censorship machine as a result. At least, that’s not a rational or moral conclusion, but then, lawmaking bodies sadly don’t tend to those traits.

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