Peter Hirtle Weighs in on SOPA

Introduction
With the events of yesterday's SOPA protests, I thought I should consult my copyright mentor, Peter Hirtle. Peter is Senior Policy Advisor of Cornell University Library, and co-author with Emily Hudson and Andrew T. Kenyon of Copyright and Cultural Institutions, an incredibly useful set of guidelines for libraries, archives, and museums. His name may sound familiar to you because I interviewed Peter last August when I visited Cornell and toured the archives and the Kheel Center. That interview is posted here.

Below, in a brief email interview, Peter talks about the long-range effects of SOPA; the pros and cons of the legislation; what it could mean for the DNS structure of the Internet; how it could affect libraries, archives, and other educational institutions; alternatives to SOPA, and who ISN'T in on the discussion. I hope you will find it as instructive and interesting as I do.

The Interview

From 10,000 ft, what do you think would be lasting effects of SOPA as it stands today (because who knows what will happen in February) on copyright law?

PBH Even if SOPA is implemented as is, I think that the biggest lasting effect is going to be that it has gotten the tech companies involved in the political process. They may find that they are happy about it because SOPA/PIPA is likely to have a chilling effect on future technical innovation in the U.S., allowing the current tech leaders to try to monopolize their existing practices. But I believe in general those companies are willing to innovate rather than sit on their laurels. That means that we may see an important counter-weight to old media companies develop. This might lead to a more open copyright policy.

How would you summarize the pros and the cons of this legislation?

PBH The legislation does try to do something about counterfeit sites and intellectual property violations in foreign countries. No one wants to buy something on the Internet and discover it is a counterfeit. The cons are that there is no evidence that it would actually be effective in limiting counterfeits and infringements. Furthermore, because it was developed without the input of anyone who understands the internet, it runs the risk of chilling innovation, interfering with free speech, and placing libraries and archives at risk for criminal violations.

How would SOPA affect the functionality of the Internet?

PBH Here you better look at other experts; I am not an Internet engineer. My understanding is that by allowing the U.S. to remove DNS names from DNS servers, it corrupts the universal DNS scheme. The Internet no longer exists if the DNS system in, say the UK, is different from that in the U.S. Security specialists fear that this could actually open security holes by making it easier for sites to pretend that they are a different site.

What does SOPA mean to libraries and archives?

PBH There is a danger that an archives could be accused of willful criminal conduct if it made copyrighted material available – even inadvertently.

How does SOPA affect other educational web sites? Or could it?

PBH For those web sites that allow users to post content, they may feel that they need to actively monitor that content to try to ensure that there is no infringing content being posted. This would be both expensive and invasive. There are also possible criminal violations for streaming content to classrooms.

What would be alternatives to this legislation to accomplish the same high-level goals without causing so much push back?

PBH I think that one could craft legislation to limit access to foreign pirate sites. Wyden’s OPEN Act, which would have the International Trade Commission investigate, is one possible solution. Most importantly, the legislation would need to be developed in discussion with the Internet industry and in an open manner to ensure that it does not harm to high tech innovation, the primary driver of growth in the country.

Have you been involved in crafting copyright legislation? And, were you consulted on SOPA by Congress?

PBH This isn’t strictly speaking copyright legislation. It affects copyright, trademark, criminal offenses, and importation laws. No one, as far as I can tell, outside of the entertainment industry, has been consulted on SOPA. The only public hearing on the bill had only supporters of the legislation speak. As for my involvement, I haven’t been following it that closely in my copyright role – but only because of my personal interest in how the internet will develop.

Thanks again to Peter Hirtle for his speedy response to my questions on SOPA. Stay tuned!