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< | SOPA: Tying The Internet to The Ground to Combat Online Piracy? | >
> | A Marketplace of Ideologies | | | | |
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On October 26, 2011 the Stop Online Piracy Act (SOPA or “the Act”) was introduced in the U.S. House of Representatives. Under the guise of promoting “prosperity, creativity, entrepreneurship, and innovation”, Congress advocates a bill which establishes a far-reaching and free speech suppressive IP protection regime that is even more restrictive than the congenial French Hadopi Law. The Act, which is based on the Pro IP Act of 2008 and Senate's PROTECT IP Act, among other things aspires to fight foreign websites that infringe U.S. intellectual property rights and expands the authority of U.S. law enforcement agencies and copyright-holders to prosecute alleged IP violations. | >
> | Under the guise of promoting “prosperity, creativity, entrepreneurship, and innovation”, Congress advocates the Stop Online Piracy Act (SOPA or “the Act”), which contemplates a free speech suppressive IP protection regime even more draconic than the congenial French Hadopi Law. The Act aspires to fight foreign and U.S.-directed websites that allegedly infringe U.S. intellectual property. For this purpose it establishes an elaborate censorship system whose implementation relies on an extended authority of U.S. law enforcement agencies as well as on an overbroad regime of privately administered justice. Advocates of property rights would benefit from the legal uncertainty created by the vaguely framed provisions of an Act that seems to refuse the slightest attempt to balance copyright against free speech interests. | | | | |
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< | Proposed Control Mechanisms | >
> | Free Speech Concerns | | | | |
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> | Even if one argues that the unauthorized use of someone else’s intellectual property does not fall within the realm of free speech protection, the present wording of the bill - if not amended or narrowly interpreted - raises serious free speech concerns due to its overbreadth. The Act’s far-reaching measures do not only target websites or portions thereof (!) that “commit”, but even those that only “facilitate” copyright or trade secret infringements. They furthermore address Internet sites that do not contain “reasonable measures” to prevent infringing goods or services from being obtained in or delivered to the United States. As a result, SOPA’s provisions would authorize the state to take action against any foreign website of the like as Vimeo, Flickr or YouTube? that hosts user generated content if only a single user posts unlawful content or provides links to potentially IP infringing sites.
SOPA’s provision enabling copy-right holders themselves to proceed against websites infringing their rights, raises similar concerns. Although only directed at sites or portions thereof which predominantly seem to engage in, enable or facilitate the violation of copyrights and trademarks, the terms “enable” and "facilitate" can be interpreted in such ways as to target websites that have not the slightest intent to enable or facilitate IP violations. Any VPN, proxy, privacy or anonymization software that serves Internet users’ privacy concerns – which are not only pivotal if one lives in an autocratic state – could fall within the scope of this wording as the anonymity they provide theoretically “enables” or “facilitates” copyright infringements.
If SOPA’s sanctions were applied, the operation of the affected websites would be stifled and with it a wide range of legitimate content they host or enable would fall prey to the Act’s sweeping regime if only some insignificant portion thereof facilitates IP violations. This implicates various free speech problems. Lawful content would be suppressed in order to prevent the distribution of unlawful content and websites that offer expression platforms or anonymity tools to users could be forced to close down although they never had any intent to violate IP rights, severely narrowing the web’s free-speech enhancing capacity. This stands in stark contrast to the safe harbor provisions of the DMCA, a framework that takes free speech interests into account. SOPA’s unusually broad standards of liability create detrimental incentives for user-driven websites to implement elaborate systems to monitor their user’s activities and establish a private censorship regime. | | | | |
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< | I will discuss some provisions of SOPA, which in their present version establish Internet control mechanisms that seem to be particularly problematic:
To prevent IP violations by foreign websites, Section 102 SOPA enables the Attorney General, who identifies a foreign website or portions thereof (!) as “committing or facilitating the commission” of copyright or trade secret violations, to seek a court order that requires Internet advertising services to stop advertising for the alleged infringing foreign site, payment network providers to cease processing payment transactions involving the respective site, service providers to deny their subscribers access to it and Internet search engines to prevent the infringing site from ”being served as a direct hypertext link”. All of this has to happen within a period of five days after receipt of a copy of the court order and without a court hearing or trial.
In addition to the mechanisms provided for the Attorney General, SOPA establishes a regime of privately administered justice: Section 103’s so-called “market-based system” which targets both, foreign and U.S. sites, is directed at websites that are “dedicated to the theft of US property”. This requires the site or a portion thereof to be a U.S.-directed site that “engages in, enables, or facilitates” copyright infringements. The provision allows copyright-holders themselves to send notices to payment processors and Internet advertising services to terminate their business relationship with allegedly infringing websites. After receiving the notice, payment processors and ad services have five days to comply and are responsible for the notification of the concerned website.
Section 104 provides another tool of private law enforcement: The provision goes so far as to even discharge liability from payment processors, Internet search engines, domain name registrars et al. that voluntarily block websites or end any existing business relationship with it, if they had a “reasonable belief” that a website engages in copyright infringement. | | | | |
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< | Selected Problems of the Present SOPA Scheme
Even if one excludes IP infringements from the realm of free speech protection, the present wording of the bill - if not amended or narrowly interpreted - raises serious free speech concerns due to its overbreadth. Section 102 is not only directed at websites or portions thereof that “commit” but also at those that “facilitate” copyright or trade secret infringements. In Section 101 the Act further states that Section 102 addresses Internet sites or portions thereof that do not contain “reasonable measures” to prevent infringing goods or services from being obtained in or delivered to the United States. To provide an example, both provisions taken together would allow the Attorney General to take action against any foreign website of the like as Vimeo, Flickr or YouTube? that hosts user generated content if only one of its users posts infringing content or provides links to potentially IP infringing sites.
Section 103 raises similar problems. Although it is only directed at a website or a portion thereof that is “primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables or facilitates” the violation of copyrights and trademarks, the terms “enable” and “facilitate” might be interpreted in a way so that the provision targets websites that have no intent at all to enable or facilitate IP violations. Any VPN, proxy, privacy or anonymization software that serves Internet users’ privacy concerns – which are not only pivotal if one lives in an autocratic state – could fall within the scope of this wording as the anonymity they provide theoretically “enables” copyright infringements.
If SOPA’s proposed sanctions were applied, the operation of the targeted websites would be stifled and a wide range of legitimate content they host or enable would fall prey to the Act’s regime even if only some minor content of the respective websites commits or enables IP violations. This would implicate various free speech problems: Lawful content would be suppressed in order to prevent the distribution of unlawful content and websites that offer expression platforms or anonymity tools to users could be forced to close down although they never had any intent to violate IP provisions. This stands in stark contrast to the safe harbor provisions of the DMCA, a framework that takes free speech interests into account. These new broad standards of liability would motivate user-driven sites to implement elaborated systems to monitor their user’s activities and establish a private censorship regime.
Another proposition of the Act adds to the free speech concerns in a broader sense: Section 102 requires ISPs to not perform Domain Name requests to websites that are targeted by SOPA. If implemented, this provision would - besides serious technical concerns - send out a politically detrimental message: If a government can institutionalize Internet censorship tools to enforce its IP laws, why could another government not filter Domain Name requests to protect central state interests such as the integrity of the political system or the preservation of cultural traditions and values and subject all websites to the filtering process that display opposed content? If SOPA will be enforced in its present form it will officially declare it legitimate for governments to cripple websites that do not entirely comply with state interests and to fragment and localize the Internet, a media that is supposed to function globally and openly.
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> | International Implications | | | | |
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< | SOPA’s proposed measures involve serious free speech restrictions, which have to be narrowly tailored to the Act’s goal to prevent actual IP violations. The present framework, if applied according to the text, does not satisfy this standard. But even if narrowed down, it remains questionable if Internet censorship – the major tool of the Act – could ever be a legitimate means to protect IP interests.
But, Nuscha, we can read
the Congressional Research Service summary of the bill on our own,
and you already linked to it. Many hundred words that could have
been used for thinking are used for summarizing provisions already
comprehensively summarized in the public sources. This is not a good
use of space.
Nor are the arguments advanced about why the bill is bad unfamiliar.
Google has lobbied very extensively on this subject, for a change, and
there's been no shortage of repetition of the points you duly repeat.
Again.
There is no meaningful political analysis here. SOPA itself is
essentially irrelevant. There's the Hollywood wishlist, and there's
what can pass the Senate. Anything Mr Smith and his leadership are
willing to move in the House will necessarily fall in between, and
will have little influence over the outcome. You don't discuss the
way the contribution game is played in election years, which is
crucial to the history of this and similar past examples of
Hollywood's (shrinking) power on Capitol Hill. You don't discuss the
White House's careful and equally tactical silence, the nature of its
political interests, or its (very high-quality and thorough, in my
direct experience) engagement with the international implications you
mention.
You don't mention or discuss the substantial, and novel, divergence of
opinion between Hollywood and the cyberwarriors and national security
buffoons—a new element this time around—which spells doom
for the Hollywood position in long run.
Where, from the larger analytic point of view, one would want to be
rising above parochial perspectives, taking a global approach, you're
lost in the minutiae of the non-dominant House half of legislation
that most likely won't move, in this one country, during an election
campaign. Serious intellectual benefit would come from backing up a
few meters, so as to see these US developments as part of a larger
conflict, between national States and the network intermediaries. The
US, Europe (including Sarkozyville and Cameroonia), India, China, are
all engaged in different but converging efforts to embed their
shrinking political authority in the fabric of the Net at the expense
of the intermediaries (multinational data miners as well as local
telecommunications network gangsters). The Net as a whole is made of
cooperation; technically and socially it derives its functionality
from consensus. It is robust against natural and technological
disaster, but not against deterioration by inconsistent
confrontational action by superstates. The crucial current process,
in this light, is not the buying of a few Congressmen by a dying
industry of no intrinsic importance, but the onset of state-level
confrontation in the Net, against one another and for control of
populations.
So I think there are two possible courses for the strengthening of
this essay. Either you should strip out the mere re-summarizing of
legislative provisions and lobbying positions, so as to make room for
some new insights into the meaning of the SOPA/PIPA business on its
own terms, or you should gain enough altitude to address the larger
significance of the current moment, internationally.
-- NuschaWieczorek - 22 Nov 2011 | | | | |
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> | Another proposition of the Act adds to the free speech concerns in a broader sense. It requires ISPs to refuse to perform Domain Name requests to websites that are targeted by SOPA. If implemented, this provision would - besides serious technical concerns - send out a politically detrimental message: If the U.S. invokes such ostensible ideals as the protection of “creativity” to justify and institutionalize Internet censorship for the enforcement of its IP laws, why would other governments not filter Domain Name requests to protect such pivotal state interests as the integrity of their political system or the preservation of cultural and religious values and subject all websites to a filtering process that display opposed content?
Hillary Clinton’s lip service to the openness of the Internet last year was a masterpiece of political ambiguity. Soaked with heavy ammunition of catchy ideology that would allow the U.S. government to justify any future agenda for its Internet governance, it blamed other States for failing to appreciate and foster the revolutionary potential of the Internet. The focus of her words was on free speech.
How much credibility will be left to her words in the eyes of these “other States”, namely Cuba, China, Iran, Burma or Vietnam, if the U.S. passes a law that officially declares it legitimate for governments to ban access to websites that do not comply with state interests and fragment and localize the Internet? Iran, one of the most beloved thorns in the country’s side, contemplates just that: a national “halal” network to shield its population from intrusions of Western culture and to protect Islamic values. Myanmar, Cuba and North Korea equally support the concept of “dual networks” to foster the ideologies of the governing. The Chinese Communist Party, one of the most sophisticated Internet censors in the world, regulates the Internet so as to “serve socialism” and bans any content it deems in opposition to this political aspiration.
Capitalism seems to be one of the predominant ideologies of the Western world, equally essential to its moral and economic survival as other countries perceive their religion or political concepts. If the U.S. is willing to censor the Internet and abandon legitimate free speech interests to reinforce a money-based approach towards content and information, it will be difficult in the future to present the country as an ambassador of Internet freedom on the world stage as Hillary Clinton vigorously did last year.
A potential UN project contemplating the inter-governmental regulation of the Internet will give these divergent concepts of content regulation and information monitoring a forum for competition and create a magnificent marketplace of ideologies. |
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