Have you heard of the Golden Mean Fallacy? I would link to the Wikipedia page, but they’re blacked out today, so here’s an excerpt from its description:
…a logical fallacy which asserts that given two positions there exists a compromise between them which must be correct. [It] implies that the positions being considered represent extremes of a continuum of opinions, and that such extremes are always wrong, and the middle ground is always correct. This is not always the case. Sometimes only X or Y is acceptable, with no middle ground possible. Additionally, the middle ground fallacy allows any position to be invalidated, even those that have been reached by previous applications of the same method; all one must do is present yet another, radically opposed position, and the middle-ground compromise will be forced closer to that position.
I added emphasis to a very important part of the explanation. All you have to do to make something bad look good is come up with something even worse to compare it to. And given the human capacity for imagination, that’s not such a difficult task.
You’ve probably heard of SOPA and Protect-IP by now. Pretty much everyone who looks at these bills, outside of the entertainment industry, agrees on a few simple points:
- These bills would give private corporations the power to censor the Internet
- These bills are unconstitutional, as they violate the 1st amendment
- These bills are evil and need to be stopped
Well, there’s some good news, and some bad news. The good news is that as more and more people are finding out about them, they’re talking to their congressional representatives, and it looks like support for these bills is falling. It’s looking likely that they won’t pass.
The bad news is the Golden Mean Fallacy. Take a look at Stop American Censorship, one of the sites that’s working to coordinate the opposition to this legislation. Check out the quotes down at the bottom, from experts on the subject. I was a bit horrified to see multiple people saying, in effect, “the DMCA is OK, but this goes too far!”
That’s the Golden Mean Fallacy talking. If we accept the Digital Millennium Copyright Act as legitimate, we’ve already lost. It’s every bit as unconstitutional and every bit as evil as SOPA, and to be honest I’m shocked that it’s apparently never been subject to judicial review on 5th or 14th amendment grounds. You probably know of the 5th amendment as the one that says you can “take the 5th” in court, meaning that you have the right to not incriminate yourself. But it also guarantees that you cannot “be deprived of life, liberty, or property, without due process of law.” The 14th amendment reiterates the whole “due process of law” thing, applying it to the states as well as the federal government.
In layman’s terms, we have a guarantee, repeated twice, in the Bill of Rights that nobody can be punished for a crime without due process of law, which means (among other things) that they have the right to a fair trial. This is just as important as a foundation for our freedoms as the First Amendment, and the DMCA tramples all over it.
How does a copyright act trample on the right to due process? I know it sounds strange at first, but the DMCA is a strange law. It allows copyright owners to send takedown notices to allegedly-infringing Internet sites, claiming that they are hosting infringing material. Under the law, this material must be removed right away, unless the owner believes that no infringement is taking place and is willing to start a fight over it.
This may not sound too unreasonable, until you realize that it puts the burden of proof on the accused. It throws one of our most sacred legal traditions, the presumption of innocence (aka “innocent until proven guilty”) out the window. Now you’re guilty, by default and without a trial, until proven innocent! You need look no further than chillingeffects.org to see the damage that this is doing, by allowing copyright holders to make false or exaggerated copyright claims and get away with it. The presumption of innocence and the right to due process exists for a reason!
But the DMCA does even worse than that: it also allows the use of DRM technology. Have you ever had a problem activating a program that you legitimately bought? Something goes wrong and you can’t use it even though you’ve paid for it and done everything right? Then you can see the problem here. It’s like the takedowns, but even worse, as you have no way to fight it. The DRM software is unaccountable. If it has a bug, (and all software has bugs,) you’re not innocent until proven guilty. You’re not even guilty until proven innocent. You’re simply guilty, and screw the proof! It doesn’t matter if you actually broke the law or not, the copyright owner’s interpretation of the law is enforced upon you and there’s nothing you can do about it.
So the worst thing about SOPA is not SOPA at all. It’s the opportunity it provides for the Golden Mean Fallacy to legitimize another piece of equally-evil legislation. Until the DMCA is repealed, and not only repealed but reversed, giving DRM technology the legal status it truly deserves, which is that of malware with no legitimate use, problems like SOPA will continue popping up again and again, because it’s built on the foundation of rights abuses codified by the DMCA.
Wikipedia is blacked out today, replacing its articles with a page urging people to contact their Congressmen in opposition to SOPA. That’s a good gesture, but ultimately meaningless. SOPA is getting enough opposition now that it’s not going to pass. We’ve already won this battle. What people need to contact their congressmen about is rooting out the source of this abuse. “Repeal and reverse the DMCA,” not “stop SOPA,” needs to be the soundbite on people’s minds if we’re to truly protect our freedom in the Internet Age.