Why SOPA and PIPA Are Bad for Open Source

The widespread internet blackout yesterday in protest at unbalanced legislation being rushed through the US Congress was dramatic and notable. I did have some questions though on why it was important to the open source community. The way the laws have been framed by their proponents makes them look as if they are all about file sharing and specifically music and video sharing. However, the problem with them is they create badly-bounded new powers that are likely to exploited in ways that fall outside the frame.

The SOPA and PIPA draft legislation that sparked the protest has plenty of other criticisms levelled against it, but I believe the threat to open source projects arises from a slightly different angle. I've previously asserted that you can spot bad legislation when it targets technology instead of the people using it. The US Digital Millennium Copyright Act helps illustrate the problem...

Yet in the context of SOPA and PIPA, the DMCA is viewed as a fondly-remembered exemplar. SOPA and PIPA use a powerful tool exploited by the DMCA in a new way. The DMCA offered "safe harbor" - that is to say, it allowed third parties like ISPs and hosting companies to gain protection from potential DMCA prosecution by acting voluntarily on complaints. A recent TED Talk by Clay Shirky provides an excellent and accessible explanation of why "safe harbor" leads to chilling effect. The new legislation does something similar, but takes it much further, allowing a complaint to trigger a cascade of pre-emptive measures against its target....