SOPA is proving to be more resilient than many had hoped, with Rep. Lamar Smith, its chief sponsor, vowing to bring it back for markup in February, just days after the White House released a statement that they would not support it. While many cheered, “SOPA is dead!” the statement was not a bill killer... not even close.
In their closing, the White House was clear that they plan to continue moving forward with anti-piracy legislation, saying, “Moving forward, we will continue to work with Congress on a bipartisan basis on legislation that provides new tools needed in the global fight against piracy and counterfeiting, while vigorously defending an open Internet based on the values of free expression, privacy, security and innovation.”
Because of the depth of information in this post, we’ve broken it into several sections, for easier reading - skim down to action sections if you are comfortable with the background info:
- What’s New - Manager’s Amendment and current concerns
- What Is All the Anti-Piracy Fuss About? - What is the problem and who created it?
- Internet Marketers on SOPA
- SOPA Supporters
- SOPA Opponents
- “Blackout Day” SOPA Protesters
- What Can You Do to Help Stop SOPA/PIPA?
What’s New - Despite Protests, Rep. Smith Pushing Ahead with SOPA Manager’s Amendment
Rep. Smith introduced the Manager’s Amendment on December 12, 2011, an “amendment in nature of a substitute"; this is now the working copy of the SOPA bill.
The amended bill addressed some of the more glaring and troublesome issues, but it’s just not enough, hence the ongoing protests and calls to flat out kill the bill. One of the changes in the amendment, for example, cut out the proposed ability to cut off a website at the DNS level after a notice of infringement, a clause that detractors said offered no due process for those wrongly accused.
Still, said the Electronic Freedom Foundation, the Manager’s Amendment was no compromise. In a December 13th post called It’s Still a Blacklist and It’s Still a Disaster, the EFF pointed out that the bill still gave the Attorney General and copyright holders the right to obtain blacklist orders and offered new ambiguity as to how the blacklists would be enforced. In their written statement, the EFF left little room for argument on how they really feel about the process, saying, “These are positive steps, but frankly, the original provisions were so overbroad and poorly written that we suspect the bill's backers had always planned to eliminate them, as a supposed “compromise.”
A number of problems remain, says Sean Flynn at InfoJustice.org, including:
- The apparent inclusion of search blocking, widely regarded as Internet censorship.
- Private right of action that may enable entities to bypass the DMCA and safe harbors to pursue legal action otherwise not allowed.
- Ambiguity in the definitions of domestic vs. foreign sites and “facilitates or enables”, to the extent that even sites compliant with DMCA safe harbor provisions may still be vulnerable.
- Complete immunity for search engines, webhosts and others who self-censor, an obvious damper on innovation and freedom of the web.
Something is coming. Whether it’s called SOPA, PIPA, OPEN Act, or some other acronym, the U.S. government, driven by pressure largely out of Hollywood, is determined to put piracy safeguards in place.
Former Senator Chris Dodd, now the Chairman of the Motion Picture Association of America, has been one of SOPA’s most vocal supporters. Dodd’s statement on accepting his new position as head of the movie industry’s influential lobbying arm last March makes clear just why the MPAA headhunted a Washington power player and what his marching orders were from the beginning:
“The major motion picture studios consistently produce and distribute the most sought after and enjoyable entertainment on earth. Protecting this great American export will be my highest priority."
Indeed, at that time, the MPAA and other major content producers including Activision, NBC Universal, Viacom, and the Recording Industry Association of America (RIAA) were pushing the phrase “rogue websites” as they lobbied for COICA, the Combating Online Infringements and Counterfeits Act. SOPA’s predecessor COICA would have allowed the Justice Department to seize domain names and order credit card and banks with U.S. operations to cease doing business with the accused sites immediately.
What Is All the Anti-Piracy Fuss About? COICA, SOPA, PIPA, OPEN Act
One huge problem with COICA was that if you knew the IP address of the site you wanted to access, you could type that in instead of the domain name and still reach the site. First, along came PIPA, which some detractors simply dubbed COICA 2.0, a jab at the worst of the similarities brought back in a not-so-new bill under a new name. SOPA aimed to stop that gap with takedown at the DNS level, one of its more hotly contested provisions, and to appear to address concerns surfaced from the debate over COICA & PIPA.
Are you with me so far? It’s a lot to take in, I know. There has been so much vitriol and mudslinging back and forth that it’s impossible to cover all of the perspectives in one post.
Hopefully this offers a bit of solid background and links out to credible sources for further information. With that said, the very complexity of piracy and the structure and ecosystem of the Internet is a problem in itself, when proposed legislation just can’t seem to hit the mark. It hasn’t escaped notice that even those debating the bill in session don’t seem to understand what it is they’re about to vote on.
So why is new anti-piracy legislation necessary? Don’t we have the Digital Millennium Copyright Act (DMCA) already? Indeed, though the chief complaint amongst large content producers is that it doesn’t reach beyond borders to enable the takedown of sites like Sweden’s ThePirateBay.org, a particularly bothersome thorn in the entertainment industry’s side.
Bills like SOPA and PIPA, though, are like swatting a fly with a sledgehammer. Still, Sen. Smith said in response to the White House’s show of opposition to the bill in its current form, "It is not censorship to enforce the law against foreign thieves.” He estimates that intellectual property industries provide 19 million high-paying U.S. jobs and accounts for more than 60 percent of American exports, though the number is uncorroborated. “Congress cannot stand by and do nothing while some of America's most profitable and productive industries are under attack," said his statement responding to the White House.
The Protect Intellectual Property Act, or Protect IP/PIPA, is a similar bill that some believe is being played off against SOPA as an alternative, when in reality, many of the provisions have the same effects. For a straight up, no hype overview of the two bills and what they entail, I recommend reading PCWorld’s SOPA & PIPA: Just the Facts.
Another proposed piece, the OPEN Act, is gaining ground as a reasonable alternative and is the option supported by Google, a staunch SOPA opponent. OPEN Act aims to balance the rights of content creators with the rights of Internet users to a free and open web. For more on how the three differ, see KeepTheWebOpen.com’s infographic:
For a more complete timeline of Communications, Privacy and Internet Law, see SOPA & PIPA: An Internet Legal History Primer on Miso Susanowa’s blog. A self-described "netizen since 1983", Susanowa was involved in the Operation Sun Devil/Steve Jackson Games episode and has been fully involved in the Internet since before there was a WWW.
“I am concerned about the corruption of government by media companies particularly,” according to Susanowa. “I have worked for a major label and also as a musician and band promoter and I know exactly how the entertainment business screws artists, suppresses product, bungles distribution and promotion and basically is actually bad for musicians and artists. The fact that a law like SOPA or PIPA can be fast-tracked with no mention on the nightly news, no debate, in closed sessions & the rest of it is alarming and indicates the power of corruption that the entertainment industry has to suppress information and produce, push or alter legislation that harms almost everyone in their pursuit of a trumped-up reason (pirates!) for their own business-model failures of the last 20 years.”
Sounds pretty harsh against the entertainment industry and big media, doesn’t it? Consider this next point of view: Mike Mozart, of Jeepers Media, produced a controversial yet well-informed video several weeks ago that shed light on how the piracy problem came to be.
“Who do you think really caused all that piracy, huh?” he asks. “Was it all these kids? Nah. They needed the tools to do it. Who distributed those tools? Guess who? CBS Television; the CNET division of CBS has almost the exclusive distribution of things like LimeWire, Kazaa, Morpheus, BitTorrent, etc.”
He goes on to widen the net. The evidence he has compiled, including years of screenshots and web history should cause everyone from the average Internet user to the U.S. Congress and Senate to demand an explanation from the companies who created the piracy problem as to why the solution should now be legislated on their terms, for their protection.
“CNET, Download.com, and ZDNet are divisions of CBS Interactive, which is owned by CBS Viacom.” Mozart goes on to explain how CNET distributed piracy software widgets for years and even branded them for companies like Disney.
Effects on the Web Just as Devastating, Say Marketers
Greg Jarboe, president of Internet marketing company SEO-PR, isn’t buying the MPAA line that not passing SOPA will kill off millions of American jobs; at the very least, he said, passing SOPA will have the same effect, through endangering the entire Internet economy. Jarboe tells us,
“I find two aspects of SOPA to be dumb and dumber,” Jarboe said. “First, SOPA would reduce freedom of expression and undermine the dynamic, innovative global Internet. That’s dumb. Second, SOPA would impose harmful regulations on American business and slow economic growth in the U.S. That’s dumber.”
Bill Slawski, president of SEO by the Sea, explained to us his SOPA concerns and what it could mean for marketers.
“One of my biggest concerns under SOPA is that it would create a private cause of action for anyone who might feel that their copyright has been infringed, and allow them to contact advertisers and payment processors for the site they claim is infringing, and ask that both advertisements and payment functions on the site be disabled, without any notification to the owner of the site or ability to respond,” Slawski said. “This could happen when something might have been copied pursuant to fair use, or by the actions of someone providing user generated content (for example, in a comment on a blog, a post on a forum, a video that includes part or all of a copyrighted song or video, or in a review). The claim might also potentially be a malicious claim as well. This would apply to websites that have been deemed both foreign and domestic.”
Jim Hedger of Digital Always Media shared just one potential effect SOPA could have on the Internet economy.
“It brings uncertainty to the web,” he said. “If there is, for some absurd reason, a competitor’s complaint about content or media found on your client’s site or in their domain somehow, could your client’s website suddenly disappear?”
In the competitive online arena, the concern is a valid one. Could anti-piracy legislation be a new instrument for black hat SEO’s to commit sabotage?
All parties need to be represented in drafting this bill, Hedger said.
“I’d like to see people who understand how the information works; I’d like to see a cross-section of people at the table. Content creators, law professors, copyright holders, philosophers, the MPAA, and the RIAA, there’s a place at the table for them,” Hedger said. “Whoever makes the media products should be at the table, along with people who actually understand the environment. It can’t just be up to the copyright holders. If it is, they’re just protecting their own interests at the detriment of the consumers and Internet users.”
Jarboe doesn’t believe PIPA/SOPA can be made fair and should be scrapped.
“SOPA and PIPA are badly drafted legislation and won’t be effective at their stated goal – to stop copyright infringement. However, they will cause serious damage to the free and open Internet. They put the burden on website owners to police user-contributed material and call for the unnecessary blocking of entire sites,” he explained. “Small sites won’t have sufficient resources to defend themselves. Big media companies may seek to cut off funding sources for their foreign competitors, even if copyright isn’t being infringed. And, SOPA and PIPA build a framework for future restrictions and suppression.”
SEMPO, the search and digital marketing industry’s professional organization, has sent a letter to U.S. Senate Majority Leader Harry Reid and Rep. Lamar Smith, in protest of SOPA legislation. SEMPO is pushing legislators to throw out the bill; their letters respectively state:
If enacted, S.968 - Protect IP Act (PIPA) and HR.3261, The Stop Online Piracy Act (SOPA), would negatively affect all Internet-based businesses, traditional businesses that have Internet presences or divisions, marketers and advertisers, and all online consumers – purportedly to help protect the rights of an infinitesimally smaller group.
The bill would not fix the problems they purport to solve, they are so vague that they would have implications far beyond their intentions, and better measures already exist that successfully address those very issues. For instance, the Digital Millennial Copyright Act of 1998 requires websites to remove links to fraudulently obtained material when the copyright holder requests it, and this provision has already been successfully invoked millions of times.”
Jarboe agreed with SEMPO.
“Although fighting online piracy is important, copyright holders alreadycan remove infringing material from the web under the DMCA notice-and-takedown procedure. There’s no need to require American social networks, blogs, and search engines to censor the Internet or undermine the existing laws that have enabled the Web to thrive, creating millions of U.S. jobs.”
A List of SOPA Supporters
Who is behind the current (and in many cases, the previous and ongoing) anti-piracy legislation push? A website called Boycott SOPA Sponsors is compiling and updating a list of SOPA supporters including some you would expect in entertainment - CBS, Comcast, NBC Universal, MPAA, RIAA et al. - and many businesses that may surprise you:
- Columbia Sportswear Co.
- Oakley Inc.
- Ralph Lauren Corp.
- Bose Corp.
- Ultimate Fighting Championship
- Rosetta Stone Inc.
They’re calling on all protesters to contact the companies and let them know their concerns, in addition to boycotting them. Editors are continuously adding phone numbers and other available contact information for each company.
Andrew Couts at DigitalTrends has also compiled a list he continues to update as players join the SOPA supporters or drop out. His living list is called The 439 organizations SOPA opponents should worry about.
A List of SOPA Opponents
Image from technology companies’ letter to congress, November 15, 2011
Several early SOPA supporters backed out, either under pressure from consumers or in light of their learning more of what it entailed, including game developer EA, GoDaddy, and Microsoft. The opponents are also many, and they are powerful, including:
- Consumer Electronics Association
- American Civil Liberties Union
- Human Rights First
Many notable opponents have spoken out publicly, though there are a few the U.S. government may wish to pay particular attention to: the engineers who created the Internet, including TCP/IP co-creator Vint Cerf, Jim Gettys, editor of the HTTP/1.1 protocol standards, and Robert W. Taylor, the founder of ARPAnet. They just might know a thing or two and could bring the requisite technical knowledge to the table, to put an end to the ambiguous language and holes in the bill big enough to drive a truck through. In part, their open letter to Congress, one of the most succinct and informed anti-SOPA communications, states:
Last year, many of us wrote to you and your colleagues to warn about the proposed “COICA” copyright and censorship legislation. Today, we are writing again to reiterate our concerns about the SOPA and PIPA derivatives of last year’s bill, that are under consideration in the House and Senate. In many respects, these proposals are worse than the one we were alarmed to read last year.
If enacted, either of these bills will create an environment of tremendous fear and uncertainty for technological innovation, and seriously harm the credibility of the United States in its role as a steward of key Internet infrastructure. Regardless of recent amendments to SOPA, both bills will risk fragmenting the Internet’s global domain name system (DNS) and have other capricious technical consequences. In exchange for this, such legislation would engender censorship that will simultaneously be circumvented by deliberate infringers while hampering innocent parties’ right and ability to communicate and express themselves online.
You can see the letter in its entirety and learn more about the 83 engineers who signed it at Death & Taxes.
Members of the United States Senate and Congress who have taken a stand against SOPA include Sen. Scott Brown, Sen. Maria Cantwell, Rep. Justin Amash, Rep. Michelle Bachman, Rep. John Campbell, Rep. Jason Chaffetz, to name just a few. See the full list to learn where your representatives stand at NetCoalition.com.
January 18, 2012 “Blackout Day” SOPA Protesters
SOPAStrike.com, from FightForTheFuture.org, has a comprehensive and living list of websites blacked out or displaying banners in protest of SOPA. Major sites include:
They are working hard to update the site as new players emerge, so check in to see the most recent list.
For their part, Microsoft has been working with others in the tech industry and in Washington to try to bring about changes in the current draft of the legislation before it is again sent for markup in February. A Microsoft spokesperson explained their decision not to join the #StopSOPA blackout to Search Engine Watch:
”We oppose the passage of the SOPA bill as currently drafted, but hundreds of millions of customers rely on our services every day so we don’t plan to shut those down to express our view. This is an important issue and we think the recent White House statement points in a constructive way to problems with the current legislation, the need to fix them, and the opportunity for people on all sides to talk together about a better path forward.”
What Can You Do to Help Stop SOPA/PIPA?
In a rant on the MPAA blog on January 17th, shortly before his crony fellow SOPA supporter Sen. Smith decided there should be a bit of lead time between blackout protests and SOPA’s markup, former Sen. Chris Dodd went off on Google, Wikipedia and others in a demonstration of complete ignorance of the democratic process and the right to peaceful protest.
In what is quite possibly the most unintentionally ironic temper tantrum to come out of the SOPA debate to date, Dodd continues to obfuscate the facts and rails on “some technology interests” for resorting to “stunts” that punish users and turn them into corporate pawns. He doesn’t seem to realize that the protest is largely about users objecting to their use as pawns by the entertainment industry to further line their pockets, with little regard for the public or the Internet. His statement continues:
A so-called “blackout” is yet another gimmick, albeit a dangerous one, designed to punish elected and administration officials who are working diligently to protect American jobs from foreign criminals. It is our hope that the White House and the Congress will call on those who intend to stage this “blackout” to stop the hyperbole and PR stunts and engage in meaningful efforts to combat piracy.
SOPA is on hold, but companies went ahead with planned protest. The Stop SOPA movement will continue until lawmakers resume markup in two weeks’ time.
Facebook’s Mark Zuckerberg and Sheryl Sandberg have both made posts to promote their anti-SOPA initiative, a Facebook Page on Anti-Piracy Bills. Said Zuckerberg in his post:
“The internet is the most powerful tool we have for creating a more open and connected world. We can't let poorly thought out laws get in the way of the internet's development. Facebook opposes SOPA and PIPA, and we will continue to oppose any laws that will hurt the internet. The world today needs political leaders who are pro-internet. We have been working with many of these folks for months on better alternatives to these current proposals. I encourage you to learn more about these issues and tell your congressmen that you want them to be pro-internet.”
Google and DuckDuckGo each used their homepage to point users to protests and further information as their anti-SOPA blackout day contribution. DuckDuckGo suggests users visit Grassroutes.org to find representatives’ contact information. For their part, Google is pointing users to their own End Piracy, Not Libertysite, where you can fill out their petition and learn more about Google’s stance on SOPA.
Avaaz.org, who collected the initial 1.25 million signatures and sent them off to the White House in protest of SOPA, has just released a statement calling Internet users to action:
(SOPA) would make the US one of the worst Internet censors in the world -- joining the ranks of countries like China and Iran. The Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) would allow the US government to block any of us from accessing sites like YouTube, Google, or Facebook.
We got the White House to switch sides and now our global campaign and the growing public pressure is forcing Congress to abandon the bill. Last weekend, Senator Cardin, who cosponsored the legislation, announced he will vote against it! Then six prominent Republicans penned a letter requesting that the bill be shelved. Now the lower house vote is reportedly on ice.
Just days ago we were told it was impossible to stop the corporate censorship cabal, but now this is at a tipping point and amazingly we could win! Let’s stop US censorship today. Sign this emergency petition to save the internet now and forward it to everyone.
Do you have other anti-SOPA resources to share? Please leave them in the comments.