Due process is part of the Fifth Amendment of the United States Constitution. Although it is hard to define completely, the following are several of its components:
Right to a fair and public trial conducted in a competent manner
Right to be present at the trial
Right to an impartial jury
Right to be heard in one’s own defense
Laws must be written so that a reasonable person can understand what is criminal behavior
As a musician and writer, I understand the need to protect copywritten material and intellectual property. As someone who is interested in the law, however, the Stop Online Piracy Act (SOPA) has me worried. Why? Well it’s complicated but I’ll try my best to explain.
We all know that authors, musicians and people involved in movie production need to sell their work product in order to make a living. If they were unable to financially support their endeavours, there would be no point to pursuing these types of careers. While I appreciate this, as someone who enjoys studying and debating the law, I have problems with this act and its vagueness. The main aim of SOPA, according to what I’ve read online, is to give the Attorney General the ability to take action against any foreign site if the site facilitates copyright infringement. This begs the question “what defines facilitation?” From what I’ve read, if you run a website, are asked to take something down that violates a copyright and do so, you can still be held liable because your site is a vehicle by which copyright infringement can occur. If the Attorney General decides to take action against a site, then the following must occur:
**Internet service providers will have to block acces to the site within five days;
**Search engines will be forced to remove any references to the site from their indexes;
** Ad providers will be forced to stop providing ad services to the site; and
**Payment providers will be forced to terminate service to the site.
In my opinion, this is throwing the baby out with the bathwater. Instead of going after the offending individual, SOPA would allow for the wholesale disbanding of the website, disenfranchising millions who use the site legally and fairly. Not only does this squelch free speech, but catagorically shutting down sites for copyright infringement violates a person’s right to due process. Among the tenants of due process, one of the most critical legal doctrines in our society, is the right to learn of the charges brought against you and to have your voice heard in a court of law. Furthermore, due process allows for the law to be written in a way so that any reasonable person can understand it. SOPA removes these protections of our freedom and thus violates the due process clause of the Fifth Amendment.
Let’s assume for the sake of argument that someone on a foreign website like Etsy uses covers from hardback copies of Suzanne Collins’ The Hunger Games to make and sell journals for $30 a piece. Clearly that violates the copyright of not only Ms. Collins, but that of the illustrator who created the cover. SOPA could be used to shut down the entire website, thereby cutting off potentially millions of law abiding craftspeople from a source of income. Let’s further assume that a charity fundraising team appropriates a copyrighted trademark for t-shirts or something and then posts a picture of the team somewhere online. SOPA could terminate the website that allowed the picture to be posted for facilitating the violation, even if the site asked the team to remove the photo and the team complied.
There are other aspects of these laws that I don’t agree with, but they are too long-winded to go into now. While I realize that most of what I’ve read regarding SOPA refers to movies and music, who’s to say my examples wouldn’t become targets? Copyright violations occur in many forms, sometimes without the offender even realizing they’ve done something wrong. I also believe that SOPA puts too much power in the hands of the Attorney General; where are the checks and balances that are inherent in other aspects of our government to prevent abuses of power. This is why I’ve added the black ribbon to my website. Protecting people’s livelihoods is admirable. The wholesale censorship and punishment of people without due process is not acceptable and should never be in a free and democratic society.