Guest Post – What’s all this #SOPA / #PIPA Stuff Anyway?

Hello, my name is Floopjack and I’ve been asked to provide a guest post about SOPA/PIPA and why you should care.

As a person who, on a regular basis, generates copyrighted content and manages networks and their interaction with the Internet, I feel I’m fairly qualified to break down what all this SOPA/PIPA hullabaloo (technical term) is about. That said, it’s my hope that you’ll take this little post as incentive to do more research on your own, form an opinion and take action as you see fit. I’m not going to try and motivate you with fear, uncertainty and doubt to push a particular position. I am not going to pretend that you will not get a fair dose of my opinion, but, above all, I’m going to try and break this down to something more easily understood. If you are already well-versed in what all this means, you may accuse me of being simplistic, or not mentioning this thing or that. Fair; but this post may not be for you, then and I’m OK with that. There are still much larger numbers of people who don’t get it and you, metaphorical unwashed masses: this is for you.

A Short History Lesson – I’ll be fast, I promise

Before SOPA/PIPA became proposed legislation and part of the lexicon, we had a little thing called the DMCA – The Digital Millennium Copyright Act. This was passed in 1998 and went into effect in 2000. Before I offer a brief explanation, intended and actual results, I feel it’s important to link to the actual text of the Act, so that you may read it for yourself. Here it is Also, the US Copyright office offers a summary here.

The intent of the DMCA was to:

1) Prevent circumvention of access controls and protection measures for copyrighted content.

In other words, if a copyrighted material had DRM (http://en.wikipedia.org/wiki/Digital_rights_management) or some other access restriction or copy protection, defeating these measures became illegal.

2) Provide so-called “safe harbor” for Service Providers from monetary damages that could result from infringing activities initiated by their users, subscribers, etc.

So, if you are a service provider and comply with provisions in section 512 of The Act, including the ability to provide a quick and easy way to disable access to allegedly infringing content that you may be providing, you would be protected from monetary damages leveled by the copyright holder(s).

What actually happened:

Well, Let’s start with “safe harbor,” first. Without it, a tremendous amount of innovation and growth on the Internet would have effectively been shut down. Was this section of the Act perfect? Probably not – you can decide for yourself, but the fact that it exists in DMCA is important. Keep this in mind, we’ll come back to it when we get into the SOPA/PIPA thing.

What about the “anti-circumvention” provisions? Here is where it gets murky. It’s true, The Act, aimed to stop copyright pirates and devices that reverse engineered DRM, other copyright protection measures, etc. In reality, this provision has done little to stop Internet Piracy. This is something we’ll also come back to in a bit. My most important point that will be repeated is twofold: A) So-called Internet Pirates are already (and always) several steps ahead – you will not be able to legislate them away. B) DMCA actually created a lot of what I will call innocent victims. I’m going to quote the EFF (Electronic Frontier Foundation) who sum it up like this: “. . .the DMCA has become a serious threat that jeopardizes fair use impedes competition and innovation chills free expression and scientific research and interferes with computer intrusion laws. If you circumvent DRM locks for noninfringing fair uses or create the tools to do so you might be on the receiving end of a lawsuit.” If you think this smacks of the fear I promised not to promote, I would encourage you to look up some of the lawsuits that have occurred in the past 10 years that have cited DMCA.

SOPA or “What were we talking about again?”

I hope the history lesson wasn’t boring. I feel a little bit of background is essential to understand the main focus of this post. And that main focus starts… now.

So, what’s SOPA? On October 26, 2011, in the U.S. House of Representatives, Representative Lamar Smith of Texas and 12 co-sponsors introduced H.R. 3261 known as the Stop Online Piracy Act, or SOPA. It is intended to build on the PRO-IP Act. Because the reach of the Act is further than the Internet specifically, it’s probably a little beyond the scope of this post. But, if you want to discuss, let me know.

Essentially, SOPA targets Internet sites that facilitate copyright or trademark infringement in a much more wide-reaching and, in my opinion, problematic way than ever before. After we get past the first few sections which are, for the most part, typical boilerplate and definitions, we get to the heart of the Bill. I’m going to break some of this down by section.

Section 102

Section 102 gives the U.S. Attorney General the ability to bring new actions to a so-called “foreign-infringing site,” including injunctions to cease and decist further activity. What’s a “foreign-infringing site?” Well, the definition is pretty broad: A “foreign-infringing site,” is any U.S.-directed site, used by users in the United States, being operated in a manner that would, if it were a domestic Internet site, subject the site to liability for criminal copyright infringement, as well as other federal copyright or trade secret violations. -Sec. 102(a)(1-2).” With this definition are no provisions for determining what percentage of “infringing content,” a site must serve to be considered a “foreign-infringing site”

Should an order be issued against such a site, intermediaries must take specific action within 5 days:

Internet Service Providers, as well as providers that operate caching DNS servers must prevent access to the infringing site (or “portion thereof…”). This includes preventing DNS resolution of the site’s domain name.

Search Engines have to prevent the site (or “portion thereof…”) from showing up in search results.

Payment networks must prevent, prohibit or suspend transactions that could occur between US customers and the site.

Ad Networks have to stop serving ads on said site, as well as stop serving ads FOR the site (sponsored links included).
Injunctions can be brought against the above “intermediaries,” as well as injunctions against anyone who might provide tools to circumvent the AG’s order.

Why is this an issue? First of all, the definition really offers no clear definition, meaning whether or not an “infringing site,” intended to be such a site and the amount of infringing material vs. legitimate material on the site in question is, apparently, irrelevant. So, going back to one of my previous points, if you accept that the real “pirates,” are already several steps ahead, the victims will largely be sites that never had any intention of serving “infringing” material.

That DNS Thing

OK. Very simply, DNS (Domain Name Service) takes a domain name, like www.YourSite.com and translates it into a machine address, where that site actually lives; an address like: 192.168.200.122 for example (These are not working examples). In reality, it’s a little more complicated than that, but you can look up DNS and how it works if you’re really interested.

The DNS blocking provisions would do 2 things – one easy to understand, one less so. 1) This is, in effect, censorship. Why? because, and this theme will be repeated, there’s no system of checks and balances in section 102. Furthermore, This DNS scheme is exactly how China’s country-wide Internet firewall functions. 2) There’s a lot of cyber crime that revolves around people being redirected to sites that claim to be something they are not, such as a site masquerading as your bank, but really it’s a site just stealing your identity. Proposed changes to the way DNS works will help prevent this. It’s called DNSSEC and you can Google it if you want to learn more. Essentially, it will rely on a system of checks and balances to make sure a site is exactly what it says it is. Manipulating DNS will defeat this and expose US individuals and networks to increased security risks, just as innovations are being created to diminish those risks.

Enough about Section 102. On to Section 103

Section 103 seeks to create a “notice and cutoff system,” that targets a website’s financial resources. Remember the DMCA? This builds on it’s notice and takedown system. So, essentially, this seeks to define a site “dedicated to theft of U.S. property” and compel payment and ad networks to cease all business with said site within 5 days of being ordered to do so. Again, there’s really no checks and balances, so any site could easily lose it’s financial support based on litigation that, at the very least, would crush start-up content providers, cloud storage systems, social media sites, etc. while allegations play out in what could, presumably, be protracted legal battles.

Nowhere in any of the sections do I see anything that would expand on protection in the context of innovation, business and job creation, etc. Remember “Safe Harbor,” from the DMCA? No mention here.

So, if the pirates are ahead of this and emerging services, innovators and innocents could be the most affected, who would gain from something like this? For that we move on to…

Section 104

Here, providers that independently block sites that they believe are hosting copyrighted material without waiting for some kind of injunction or prompting from the AG are offered legal immunity.

If an ISP has “reasonable belief” (that is as clear as the definition gets) that a foreign site is “dedicated to the theft of U.S. Property,” it can block that site. Again, no checks or balances and no clear definitions. So, (and many people have used this analogy – if you want it attributed as your original idea, just let me know and I’ll add your name here) let’s use Comcast as a case study: Comcast is a very large Internet Service Provider in the U.S. (they’re my ISP, in fact). They also own NBC. Presumably, if SOPA passed, there would be nothing preventing Comcast from asserting a “reasonable belief,” that a site in Uzbekistan that provides videos for viewing that could be construed as a competitor to NBC somehow violates U.S. Copyright. This would, consequently, cut that site off at the knees and tie up the incident in litigation. Meanwhile, it’s funding and visibility would cease to exist.

Logic? What Logic?

Despite neat and innocuous appearing summaries published by SOPA’s supporters, the consequences of it’s passing would not affect or punish actual pirates to any great extent that I can determine. If you see a way that it actually could, please let me know. I do feel that, instead, the Internet as seen from the United States, would be a very different entity. Also, I hate, “slippery slopes,” and this is, indeed, a slippery slope. What could come next?

ZOMG this is a long post… or … WTF is PIPA now?

OK, PIPA is the Senate version of SOPA. PIPA is the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011. You can read it here.

It was introduced by Senator Patrick Leahy of Vermont.

PIPA and SOPA are not identical, but I believe their consequences would be. The differences are not dramatic enough to outline here, in my opinion, but I encourage you to read the bill and form your own opinion.

Who Opposes SOPA/PIPA?

I do. And, here’s a pretty good list of others who do, as well.

Who Supports SOPA/PIPA

A pretty good list here

The Latest

The latest news is encouraging. The White House issued a statement that, in part, reads, “While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet,”

In addition, Representative Lamar Smith has said he plans to remove the DNS blocking language from the House bill (SOPA) and Senator Patrick Leahy has promised to do the same in the Senate Bill. (PIPA)

While this is encouraging to those of us that oppose SOPA/PIPA, nothing is a done deal.

Are we there yet?

I hope that, at the very least, you stayed awake through the post and feel more informed about SOPA/PIPA and can form a more educated opinion. It’s true that I have interjected my own feelingss, but I have also provided links to the bills, so that you may read them and draw your own conclusions.

If you do decide to express your opinion, one way or the other, I certainly encourage a healthy debate. If you believe in something strongly, please also consider taking a few extra steps, like picking up the phone (you know, that thing you play Words with Friends on) and calling your representatives in Congress and expressing your opinion on the bills. You might want to write letters, as well. Tweeting at your representatives, sending them email, signing petitions, etc. can also be effective. I put a banner on my pic on Twitter to help raise awareness of my position on the issue, but that’s not all I’m doing.

How do I really feel?

I’m of the opinion that a dying, old, entertainment model is lobbying for legislation like this, instead of changing with the times. I am not of the opinion that people who generate content should not be paid for their work. As an independent musician and a member of BMI, I generate copyrighted content all the time and if I decide I want to get paid for some of it, I expect some kind of protection, but I do not support legislation that punishes “The Internet,” as a whole in lieu of punishing actual pirates, who are many steps ahead of all of this anyway.

What’s your opinion?

Thanks!

I want to thank Wine Librarian and Bitchy Librarian for asking me to post on their blog. I’m honored and hope that I’ve furthered the discussion on this issue in at least some small way. Stock Illustration provided by sxc.hu and used in accordance with their image license.

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2 Responses to “Guest Post – What’s all this #SOPA / #PIPA Stuff Anyway?”

  1. Floop Jack says:

    A quick mention of alternative legislation being proposed should probably have been a part of the original post. Take a moment to visit http://KeepTheWebOPEN.com/ to read about the proposed Online Protection & ENforcement of Digital Trade Act

  2. Jared James says:

    This seems like a classic example of Bad Law, which is to say, reactionary, draconian response to a problem mainly already in the past; your post makes it seem even sillier and more likely to have an unwarranted chilling effect than I previously believed.

    That’s not to say this is the only, or the last, example of Bad Law; we need look no further than Prohibition for a law that many people lobbied a very long time to support, only to have it blow up in their faces when the rest of the country discovered (to their horror) that the law prevented acts (okay, drinking still went on) that mainly nobody did anymore, and lots more perfectly acceptable behavior that a majority of people actually wanted to engage in, but couldn’t anymore. Perfectly legal sharing of licensed or creative-commons content could be heavily chilled by this law, while “sites created to infringe or steal US content” mainly don’t exist anymore; piracy has moved on from the Grenada/Bermuda Model, mostly for perfectly sensible economic reasons (there wasn’t any profit in it worth having, especially if you had to pay electric bills in Grenada or Bermuda.)

    In short: this is exactly the sort of dumb law that gets passed by a reactionary legislature, and I’m sure it will make it out of committee at some point. Here’s hoping it dies on the floor, or at least gets pocket-vetoed out of existence.