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February 17, 2011

The Shakespeare Conspiracy

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Posted by Alan Wexelblat

(No, not that conspiracy.) Over at The Volokh Conspiracy, David Post has a stinging rebuttal to an idiotic New York Times opinion piece.

The column, by Authors’ Guild leaders Scott Turow and Paul Aiken with professor James Shapiro makes a plea for support of the COICA bill (Combating Online Infringement and Counterfeits Act) that is presently before Congress. The column's authors ask whether we will ever manage to get another Shakespeare - or whether we even would have had the historical one - without the brave souls of the Cartel and Congress protecting us from the scourge of piracy and... OK, I can't keep this up.

First of all, as Post delightedly points out, Shakespeare lived, worked and died before the very first copyright law was ever passed. So, you know, without copyright laws we'd have... Shakespeare.

That bit of obfuscatory mis-history aside, the point of the Times column is to claim that the decline of things like traditional publication for books, newspapers, you name it is all due to illegal copying. Nothing is said about e-books, or about online publications, or about any of the myriad of causes a reasonable person might want to discuss in regard to the ongoing collapse of traditional publishing mechanisms.

Instead, what we get is defense of a bill that would create a legal pretext for silencing people that the Cartel doesn't like, without all that messy stuff about being able to defend oneself. It's just much simpler and more efficient if the authorities can be told to shut down sites that someone doesn't like. There's a nasty piece of indirection here since what's authorized in the bill isn't exactly silencing an individual - it's seizure of the domain name. The equivalent in the real world would be something like the authorities saying "We're not going to stop you talking - we'll just padlock all the doors from the outside and tell everyone you canceled your talk." Presumably some genius thinks this indirect approach doesn't raise First Amendment concerns.

Post's blog piece is itself passionate, making reference to the US's position as a "bulwark" of free expression and all that jazz. That's nice if passion is your thing, but I'm a pragmatist and pragmatically this bill is shite. As the attempts to keep Wikileaks dark have shown most recently you can't just grab a few domain names and expect that to be the end of it. Say it with me: the 'net treats censorship as damage and routes around it. Egypt tried to black out an entire country and failed.

If this plan really does go forward then there will be some serious questions raised about who owns domain names and to whom the DNS authorities must report. The US does not control (nor should it control) the world's DNS servers. If DNS servers in the US have a different idea of what the IP address is for a seized domain than DNS servers elsewhere it could be... interesting. In theory, DNS servers get their marching orders from the so-called "root" servers, which are supposed to be under the control of ICANN, which is supposed to be independent of national authorities. In practice the government has already carried out a few of these seizures and the ISPs have played along. If the ISP tells the DNS system that someone else now owns a domain there's little that anyone can do to dispute that.

Apparently Messrs Turow, Aiken, and Shapiro think it's just fine and dandy for ISPs to act as stooges for the US government. I wonder how they'll feel when the Chinese government decides that it owns domains and has its ISPs stealing away hosts that the Author's Guild cares about. Sauce for the goose, gentlemen. You are not going to like how this will go down.

Comments (1) + TrackBacks (0) | Category: Laws and Regulations


1. Robert Scott Lawrence on February 28, 2011 12:55 AM writes...

Apparently ICANN is going to be yet another de facto arm of the federal government's self-defeating war on free speech. Although I suppose I shouldn't be shocked that our esteemed Congress would foist another totalitarian law on us in the name of "freedom," this is simply absurd. What are these clowns thinking? We already have the Mickey Mouse franchise pushing copyright out so far that authors are food for worms for a generation before their rights lapse, and now COICA wants a no-review injunction and seizure based on affidavit as though quoting poetry was akin to an act of terrorism. Taking down the forum for speech is obviously an attack on speech, but perhaps the government thinks people are so happy with their soma and TV that no one will notice.

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