Prin actualele tentative de legislație anti-piraterie. Vă recomand un articol excelent despre consecințele dezastruase pe care instituirea oricărei legi din cele propuse recent ar avea-o asupra internetului.
Lăsând deoparte pentru moment chestiunea legitimității copyright-ului sau patenetelor, internetul este un exemplu de anarhie bună, adică acel tip de ordine policentrică bazată pe respectul persoanei și proprietății în care oamenii se întâlnesc și au relații pașnice, contractuale și profitabile (pentru perechile angajate în schimb).
Este o ordine internațională în care vedem concretizate idealul liberei circulații, a informației și a unor servicii, dacă nu a mărfurilor și persoanelor.
Bineînțeles că celor care iubesc vămile, controalele, restricțiile, regulile arbitrare, taxarea și îmbogățirea porcească de pe urma sclaviei part-time, pe care o pot exersa pe mulțimile duse de nas prin mașinăriile oficiale de propagandă, acestor „alcătuitori de iad pământesc” nu le place ordinea anarhică a internetului.
Vă rog să vă întrebați ce ar răspune un utilitarist foarte inteligent la întrebarea „Cum să distrugem internetul ca primă barieră internațională a avansului lipsirii de libertate în lume, sub variile sale aspecte”?
Probabil că un răspuns de top ar fi exact instituirea legislațiilor de tip SOPA. Articolul despre care vorbeam este unul mai degrabă tehnic decât ideologic, iar importanța lui stă în faptul că pune foarte clar în evidență două lucruri:
1. că legislațiile de tip SOPA vor să umble la fundamentele arhitecturii internetului, să arunce nisip în motorul care îl face să funcționeze atât de bine.
2. că aceste legislații sunt în flagrantă opoziție cu principiile fundamentale de drept, cu țesutul a ceea ce numim „Rule of Law”.
Recomand cu tărie parcurgerea întregului articol:
Aici citez partea despre subminarea supremației legii, prin legislație:
SOPA Undermines the Rule of Law
Two of SOPA’s provisions are especially troubling. First, SOPA authorizes the issuance of these domain-name-removal orders after nothing more than summary ex parte proceedings, proceedings in which only the prosecutor and the judge, and not the individual(s) responsible for the websites’ activities, are present.
What this means is that some Korean, or Brazilian, or Russian website operator wakes up one morning to discover that her domain has been “seized” by the US government, and that ISPs are now removing it from the routing tables and making it, literally, invisible across the Net. Her website is still up and running—it’s just that fewer and fewer people can reach it.
She can challenge the seizure (once she finds out what happened)—perhaps on the grounds that her website is not “dedicated to infringing activities” at all, perhaps on the grounds that under Korean, or Brazilian, or Russian law her actions are entirely lawful, or perhaps on the grounds that the prosecutor just got it wrong, as prosecutors sometimes do—but she’ll have to come to the United States, and get legal representation, to do so. (And if she does that, in a little added bit of nastiness, SOPA provides that she will then be deemed to have subjected herself to the personal jurisdiction of the US courts.)
Second, SOPA authorizes a kind of “vigilante enforcement”: Copyright or trademark holders, acting entirely on their own without the intervention even of a prosecutor or a judge, would be able simply to provide written notice to banks, credit card companies, Internet search engines, or Internet advertisers regarding the allegedly infringing conduct of the foreign websites, and the recipients of such notices will then have five days to cease doing any business with the offending website or risk losing an immunity from suit for damages caused by the website’s continuing operation.
Imagine this scenario: “A guy walks into a bank. He asks to see the branch manager. He says: “You know Farmer Jones, whose place is just down the road from mine? He’s been dumping horse manure in my pond, and spoiling it for my livestock. He’s a nasty SOB. STOP DOING BUSINESS WITH HIM. FREEZE HIS ACCOUNT.”
In our realspace legal world, the bank will (and should) refuse. “We’re sorry, but we can’t just take your word for it,” the bank will say; “Bring us a court order and we’ll comply, but we’re not going to deny Farmer Jones access to our services just because you think he’s acting illegally.”
More to the point, in our realspace legal world, the law surely does not and cannot compel the bank to comply with the demand, or offer it a reward for doing so—which is precisely what SOPA would do.
One of the very small number of truly fundamental principles undergirding our legal system and the Rule of Law itself—a principle enshrined (twice!) in our Constitution—is that you may not deprive anyone (like Farmer Jones) of life, liberty, or property without due process of law. And due process of law requires that Farmer Jones has a meaningful opportunity to be heard, before a neutral magistrate, in an adversarial proceeding in which you and he each get to present your side of the story, in a forum that can lawfully assert jurisdiction over Farmer Jones and/or his property.
What is most disturbing about SOPA is not just that it would run roughshod over this principle, though it would, and that is disturbing enough; what is most disturbing about SOPA are the justifications proffered by its proponents for doing so.
I’m not aware of any SOPA supporter who argues that SOPA actually does provide foreign website operators with a meaningful opportunity to be heard, before a neutral magistrate, in an adversarial proceeding and in a forum that can lawfully assert jurisdiction over him and/or his property before depriving them of their ability to communicate with millions of Internet users in the United States. They typically know full well that it does not.
Instead, SOPA supporters argue that the full panoply of procedures comporting with due process isn’t required when courts “seize property” (like a domain name) that is located “inside” United States borders. And they argue that, in any event, SOPA doesn’t violate the due process rights of foreign website owners because foreign nationals standing outside of U.S. borders don’t have due process rights.
To be fair, their position is not an entirely indefensible one; indeed, there’s precedent to the effect that, as the Supreme Court put it in United States v. Verdugo-Urquidez, “[a]liens receive constitutional protections [only] when they have come within the territory of the United States and developed substantial connections with this country.”
Thus, to SOPA proponents, the proper analogy here is to the Customs Service. SOPA, they say, simply prevents persons operating outside the United States from entering into our territory and bringing unlawful material—contraband movies and handbags—with them. Customs agents board and search ships at the U.S. borders all the time, and if they find 100,000 copies of the “Avatar” DVD in the hold, they seize those copies and bring them before a magistrate, who orders their disposal and destruction (with or without the ship owner present). Nobody complains about due process (or, for that matter, about the ship owner’s First Amendment rights) when this happens. “Why, then,” SOPA supporters ask, “is everyone so exercised about SOPA?”
SOPA Is Outmoded, Unworkable, and Unjust
To which the answer is: we’re exercised about SOPA because, as I said earlier, it is outmoded, unworkable, and unjust. The Customs Service analogy doesn’t work; there are no ships and there are no borders, no “French” or “Brazilian” or “American” parts of the Internet, but rather a single global network.
We can, if we wish, impose borders onto the network, through legislative enactments like SOPA, creating an “American” portion of the Internet, while the Brazilians create a “Brazilian portion,” the Australians an “Australian portion,” and so on. But why would we want to do that? Why would we want the Internet to look like the map of the world in 1950 or 1975, when its power derives precisely from the fact that it is a single global network, accessible to, and allowing communication among, all of the world’s peoples?