Saturday, November 19, 2011

H.R.3261 Stop Online Piracy Act


The Stop Online Piracy Act (SOPA), also known as H.R.3261, was introduced in the United States House of Representatives on October 26, 2011, by Representative Lamar Smith [R-TX] and a bipartisan group of 12 initial co-sponsors. The bill is intended to expand the ability of U.S. law enforcement and copyright holders to fight online traffic in copyrighted intellectual property and counterfeit goods.[2] Now before the House Judiciary Committee, it builds on the similar PRO-IP Act of 2008 and the corresponding Senate bill, the Protect IP Act.[3]
Proponents of the bill say it protects the intellectual property market, including the resultant revenue and jobs, and is necessary to bolster enforcement of copyright laws especially against foreign websites.[4] Opponents say it is censorship,[5] that it will "break the internet",[6] cost jobs,[7] and that it will threaten whistleblowers and other free speech.[8]
The bill would allow the U.S. Department of Justice (DOJ), as well as copyright holders, to seek court orders against websites accused of enabling or facilitating copyright infringement. Depending on who requests the court orders, the actions could include barring online advertising networks and payment facilitators such as PayPal from doing business with the infringing website; barring search engines from linking to such sites and requiring Internet service providers to block access to such sites. The bill would make unauthorized streaming of copyprotected content a felony. The bill also gives immunity to Internet services that voluntarily take action against websites dedicated to infringement.[9]
The House Judiciary Committee held a hearing on SOPA on November 16, 2011

Contents

The first section allows in rem legal action against "foreign rogue sites", websites outside U.S. jurisdiction that "enable" or "facilitate" copyright infringement.[citation needed] The US Attorney-General could force US-based ad networks such as Google and payment processors such as Paypal or Visa to stop doing business with, and search engines to stop displaying results for, sites found to infringe on copyright.[11] Private copyright holders such as Universal Pictures could also require ad networks and payment processors to stop doing business with a site they say infringes on a copyright. The second section increases the penalties for streaming video and for selling counterfeit drugs, military materials or consumer goods.

Title I

Section 102 of the bill authorizes the Attorney General to initiate federal proceedings[12] against "foreign infringing sites"[citation needed] that engage in trademark counterfeiting, copyright infringement, or theft of trade secrets. The bill would allow the court to order Internet service providers, "payment network providers," search engines, and advertising services to take "technically feasible and reasonable measures"[citation needed] to cut these sites off. DNS servers would be required to return an empty response for these sites, making them accessible only by their IP address, which would compromise DNSSEC, the protocol for name server integrity. Search engines would also need to filter results linking to such sites.
Under section 103, a private rights-holder could have a payment network provider or advertising service suspend services to an alleged infringing website. That website then has five days to respond and send a counter-notification. Canadian journalist and blogger Cory Doctorow, who co-founded the popular social media site Boing Boing, explains his objection to that process: "When small sites, and it's the small sites that get turned off in the night and no one for the most part notices, say my friend's political blog or news site gets blocked by the US government and she has no way to get it back up even though everything she did was legal according to current law, and no one can help her except she can choose to file suit to defend herself, I feel like I die inside a little."[11]
The remaining provisions of Title I allow for voluntary actions[clarification needed][citation needed] to deny services to foreign sites selling prescription medication to American consumers.

Title II

Title II increases penalties[clarification needed][citation needed] for certain especially dangerous acts of counterfeiting and economic espionage[clarification needed][citation needed]. Willfully uploading streaming media that infringes copyright becomes a felony.

Ramifications

Open source software projects may shut down under this bill,[13] under a provision which the EFF believes to target Mozilla,[14] the browser used for about a quarter of all web searches.[15] Mozilla refused in early 2011 to pull the Mafiaafire add-on from its website, asking "Have any courts determined that the Mafiaafire add-on is unlawful or illegal in any way?"[16][17]
"The language of SOPA is so broad, the rules so unconnected to the reality of Internet technology and the penalties so disconnected from the alleged crimes that this bill could effectively kill e-commerce or even normal Internet use. The bill also has grave implications for existing U.S., foreign and international laws and is sure to spend decades in court challenges," said a news analysis in the information technology magazine eWeek.[18]
According to co-sponsor Representative Bob Goodlatte [R-VA], chairman of the House Judiciary Committee's Intellectual Property sub-panel, SOPA represents a rewrite of the PROTECT IP Act to address tech industry concerns. Goodlatte told The Hill that the new version requires court approval for action against search engines.[19] The Senate version, PROTECT IP, does not.[20][21]
Goodlatte added, "We're open to working with them on language to narrow [the bill's provisions], but I think it is unrealistic to think we're going to continue to rely on the DMCA notice-and-takedown provision. Anybody who is involved in providing services on the Internet would be expected to do some things. But we are very open to tweaking the language to ensure we don't impose extraordinary burdens on legitimate companies as long as they aren't the primary purveyors [of pirated content]".[22][12] The DMCA provision known as safe harbor protects YouTube[23] and other sites such as social networks hosting uploaded user material from liability, provided the sites promptly remove infringing material brought to their attention, removing "the risk that the few users among millions who post copyrighted material, libelous statements or counterfeit goods would subject the site to business-crushing legal liabilities."[24]
Etsy, Flickr and Vimeo all seem likely to shut down if the bill becomes law, the EFF warned.[25] YouTube is online today because it adheres to precisely the takedown provisions that the bill would alter.[26] According to critics, the bill would ban linking to sites deemed offending, even in search results[27] and on services such as Twitter.[28]

Technical concerns

Rep. Zoe Lofgren (D-CA), who has called the bill "the end of the internet as we know it," on Nov 17 released and posted to her website a technical assessment she requested from Sandia National Laboratories of the House and Senate bills. Neither would effectively control piracy and they would delay implementation of DNSSEC, her statement said, summarizing Sandia's response.[29][30]
Andrew Lee, CEO of ESET North America, has expressed concerns that since the bill would require internet service providers to filter DNS queries of rogue websites, rendering them unresolvable, this would undermine the integrity of the Domain Name System.[31]
Ars Technica on Nov 17 2011 reported the appearance of a new anonymous top-level domain outside of ICANN control.[32]

Business concerns

Critics of the bill, including Google, have expressed concern that the legislation would weaken provisions of the existing Digital Millenium Copyright Act that protect Internet companies that act in good faith to remove user-uploaded infringing content from their sites.[33]
"This bill cannot be fixed; it must be killed," the EFF said on October 28 2011, calling the bill a "massive piece of job-killing Internet regulation."[34] "Is this really what we want to do to the internet? Shut it down every time it doesn't fit someone's business model?" asks Harvard Business Review blogger James Allworth, concluding that the bill would "give America its very own version of the Great Firewall of China."[35]
"It'll have a stifling effect on venture capital," said internet entrepreneur Lukas Biewald, founder of Crowdflower. "The venture capitalists have been pretty vociferous opponents of this bill. If it's making investors nervous, that’s bad for me and other startup founders. No one would invest because of the legal liability."[36]
"Intellectual property is one of America’s chief job creators and competitive advantages in the global marketplace," said Goodlatte, "yet American inventors, authors, and entrepreneurs have been forced to stand by and watch as their works are stolen by foreign infringers beyond the reach of current U.S. laws. This legislation will update the laws to ensure that the economic incentives our Framers enshrined in the Constitution over 220 years ago - to encourage new writings, research, products and services - remain effective in the 21st Century’s global marketplace, which will create more American jobs. The bill will also protect consumers from dangerous counterfeit products, such as fake drugs, automobile parts and infant formula."[37]
Conyers said, "Millions of American jobs hang in the balance, and our efforts to protect America’s intellectual property are critical to our economy’s long-term success."[37] Smith added, "The Stop Online Piracy Act helps stop the flow of revenue to rogue websites and ensures that the profits from American innovations go to American innovators."[37]

Free speech concerns

Many proxy servers, such as those used during the Arab Spring, can also be used to thwart copyright enforcement and therefore may be made illegal by this law.[38]
On November 18, 2011 the European parliament adopted by a large majority a resolution that "stresses the need to protect the integrity of the global Internet and freedom of communication by refraining from unilateral measures to revoke IP addresses or domain names."[39]
Whistleblowers have already met with punitive copyright lawsuits, no less ruinous because they were eventually decided in favor of the whistleblowers. Microsoft in 2010 served Cryptome with a DMCA takedown notice for a non-commercial handbook for law enforcement showing how to subpoena Microsoft user records.[40] Network Solutions shut down the site when its owner refused to remove the material. Microsoft eventually backed down.[41] Web hosts served with takedown notices[42][43] by Diebold in 2003 generally removed material about problems with the company's voting machines rather than argue[44] its constitutional protections.[45] Diebold eventually lost a precedent-setting case in court but this required more than a year of litigation.
"A bill that was to target only the "worst of the worst" foreign Web sites committing blatant and systemic copyright and trademark infringement has morphed inexplicably into an unrestricted hunting license for media companies to harass anyone--foreign or domestic--who questions their timetable for digital transformation," wrote CNET correspondent Larry Downes.[12]

Supporters

The Stop Online Piracy Act was introduced by Representative Lamar Smith [R-TX] and was initially co-sponsored by Howard Berman [D-CA], Marsha Blackburn [R-TN], Mary Bono Mack [R-CA], Steve Chabot [R-OH], John Conyers [D-MI], Ted Deutch [D-FL], Elton Gallegly [R-CA], Bob Goodlatte [R-VA], Timothy Griffin [R-AR], Dennis A. Ross [R-FL], Adam Schiff [D-CA] and Lee Terry [R-NE]. As of November 15, 2011, there were 24 sponsors.[46]
The legislation has broad support from organizations that rely on copyright, including the Motion Picture Association of America, the Recording Industry Association of America, Macmillan Publishers, Netflix, Viacom, and various other companies and unions in the cable, movie, and music industries. Supporters also include trademark-dependent companies such as Nike, L'Oréal, and Acushnet Company.[citation needed]
Both labor groups[who?] and the U.S. Chamber of Commerce support H.R. 3261, and many industries[who?] have also publicly praised the legislation.[citation needed] On September 22, 2011, a letter signed by over 350 businesses and organizations—including NBCUniversal, Pfizer, Ford Motor Company, Revlon, NBA, and Macmillan—was sent to Congress encouraging the passage of the legislation this year.[47][48]

Opposition


EFF home page with American Censorship Day banner
Opponents of the bill include Google, Yahoo!, Facebook, Twitter, Reddit, AOL, LinkedIn, eBay, Mozilla Corporation, and Wikimedia Foundation, the Brookings Institution and human rights organizations such as Reporters Without Borders,[49] the Electronic Frontier Foundation, the ACLU and Human Rights Watch.[50][51][52]
The Library Copyright Alliance (including the American Library Association) objects to the broadened definition of "willful infringement" and the introduction of felony penalties for noncommercial streaming infringement, stating that these changes could encourage criminal prosecution of libraries.[53]
On November 16, Tumblr, Mozilla, Reddit, Techdirt, and the Center for Democracy and Technology were among many other Internet companies that protested the Stop Online Piracy Act by participating in a so-called "American Censorship Day". They displayed black banners over their site logos with the words "STOP CENSORSHIP".[54]
House Minority Leader Nancy Pelosi has expressed opposition to the bill, as well as Representatives Darrell Issa (R-CA) and presidential candidate Ron Paul (R-TX), who joined nine Democrats to sign a letter to other House members warning that the bill would cause "an explosion of innovation-killing lawsuits and litigation."[55]

See also

References

  1. ^ H.R.3261 - Stop Online Piracy Act; House Judiciary Committee; October 26, 2011
  2. ^ House Introduces Internet Piracy Bill; Washington Post; October 26, 2011
  3. ^ H.R. 3261, STOP ONLINE PIRACY ACT; House Judiciary Committee; October 26, 2011
  4. ^ Beth Marlowe (Nov 17 2011), SOPA (Stop Online Piracy Act) debate: Why are Google and Facebook against it?, Washington Post, http://www.washingtonpost.com/business/sopa-stop-online-piracy-act-debate-why-are-google-and-facebook-against-it/2011/11/17/gIQAvLubVN_story.html?tid=pm_business_pop, retrieved Nov 17 2011
  5. ^ Albanesius, Chloe (1970-01-01). "SOPA: Is Congress Pushing Web Censorship? | News & Opinion". PCMag.com. http://www.pcmag.com/article2/0,2817,2396518,00.asp?obref=obinsite. Retrieved 2011-11-18.
  6. ^ Chloe Albanesius (Nov 1 2011), Will Online Piracy Bill Combat 'Rogue' Web Sites or Cripple the Internet?, http://www.pcmag.com/article2/0,2817,2395653,00.asp#fbid=6r9KNM2HX7x
  7. ^ Jesper Andersen (Nov 16 2011), Stop the Stop Online Piracy Act, Forbes, http://www.forbes.com/sites/jesperandersen/2011/11/16/stop-the-stop-online-piracy-act/, retrieved Nov 17 2011
  8. ^ Trevor Timm (Nov 2 2011), Proposed Copyright Bill Threatens Whistleblowing and Human Rights, Electronic Frontier Foundation, https://www.eff.org/deeplinks/2011/11/proposed-copyright-bill-threatens-whistleblowing-and-human-rights, retrieved Nov 17 2011
  9. ^ The US Stop Online Piracy Act: A Primer; PC World - Business Center; November 16, 2011
  10. ^ USA House Of Representatives Committee on The Judiciary (Nov 16 2011), Hearing on: H.R. 3261, the "Stop Online Piracy Act", http://judiciary.house.gov/hearings/hear_11162011.html
  11. ^ a b Cory Doctorow (Nov 11 2011), Stop SOPA Save the Internet, BoingBoing, http://boingboing.net/2011/11/11/stop-sopa-save-the-internet.html
  12. ^ a b c Downes, Larry (November 1, 2011). "SOPA: Hollywood's latest effort to turn back time". CNET News. http://news.cnet.com/8301-13578_3-20128239-38/sopa-hollywoods-latest-effort-to-turn-back-time/. Retrieved November 9, 2011.
  13. ^ Brian Proffitt (Nov 14 2011), Piracy bill could waylay FLOSS projects: If enacted, the SOPA bill in the U.S. House would target software vendors, IT World, http://www.itworld.com/security/223845/piracy-bill-could-waylay-floss-projects
  14. ^ Peter Eckersley (Nov 11 2011), Deep Links (Electronic Frontier Foundation), https://www.eff.org/deeplinks/2011/11/hollywood-new-war-on-software-freedom-and-internet-innovation
  15. ^ Gavin Clarke (November 16 2011), Mozilla stirs netizens against US anti-piracy law: Dancing cats take-down threat, The Register, http://www.theregister.co.uk/2011/11/16/mozilla_sopa/
  16. ^ David Kravaets (May 5 2011), Feds Demand Firefox Remove Add-On That Redirects Seized Domains, Wired, http://www.wired.com/threatlevel/2011/05/firefox-add-on-redirect
  17. ^ Questions to Department of Homeland Security April 19, 2011, http://www.scribd.com/doc/54218316/Questions-to-Department-of-Homeland-Security-April-19-2011
  18. ^ Wayne Rash (Nov 16 2011), "House SOPA Hearings Reveal Anti-internet Bias on Committee, Witness List", Cloud Computing News (eWeek), http://www.eweek.com/c/a/Cloud-Computing/House-SOPA-Hearings-Reveal-AntiInternet-Bias-on-Committee-Witness-List-222080/1/
  19. ^ Gautham Nagesh (Oct 31 2011), http://thehill.com/blogs/hillicon-valley/technology/190781-tech-groups-say-online-piracy-bill-would-create-nightmare-for-web-and-social-media-firms, The Hill, http://thehill.com/blogs/hillicon-valley/technology/190781-tech-groups-say-online-piracy-bill-would-create-nightmare-for-web-and-social-media-firms
  20. ^ PROTECT IP Act of 2011, S. 968, 112th Cong. § 3(d)(2)(D); "Text of S. 968," Govtrack.us. May 26, 2011. Retrieved June 23, 2011.
  21. ^ PROTECT IP Act of 2011, S. 968, 112th Cong. § 4(d)(2); "Text of S. 968," Govtrack.us. May 26, 2011. Retrieved June 23, 2011.
  22. ^ Nagesh, Gautham (October 31, 2011). "Tech groups say online piracy bill would create 'nightmare' for Web and social media firms". The Hill. http://thehill.com/blogs/hillicon-valley/technology/190781-tech-groups-say-online-piracy-bill-would-create-nightmare-for-web-and-social-media-firms/. Retrieved November 9, 2011.
  23. ^ Lasar, Matthew (June 23, 2010). "Google triumphant, beats back billion dollar Viacom lawsuit". Ars Technica. http://arstechnica.com/tech-policy/news/2010/06/google-beats-viacom-in-billion-dollar-lawsuit.ars. Retrieved November 7, 2011.
  24. ^ Temple, James (November 2, 2011). "Stop Online Piracy Act would stop online innovation". San Francisco Chronicle. http://articles.sfgate.com/2011-11-02/business/30353433_1_sopa-craigslist-internet-service-providers. Retrieved November 7, 2011.
  25. ^ Parker Higgins (Nov 15 2011), What's On the Blacklist? Three Sites That SOPA Could Put at Risk, Electronic Frontier Foundation, https://www.eff.org/deeplinks/2011/11/whats-blacklist-three-sites-sopa-could-put-risk
  26. ^ David Kravaets (June 23 2010), "Google Wins Viacom Copyright Lawsuit", Threat Level (Wired), http://www.wired.com/threatlevel/2010/06/dmca-protects-youtube/
  27. ^ Corynne McSherry (October 26 2011), Disastrous IP Legislation Is Back – And It’s Worse than Ever, Electronic Frontier Foundation, https://www.eff.org/deeplinks/2011/10/disastrous-ip-legislation-back-%E2%80%93-and-it%E2%80%99s-worse-ever
  28. ^ Markham C. Erickson (Nov 1 2011), H.R. 3261, “Stop Online Piracy Act” (“SOPA”): Explanation of Bill and Summary of Concerns, NetCoalition, http://cdt.org/files/pdfs/NC-Analysis_of_HR3261_FINAL.pdf
  29. ^ ["http://lofgren.house.gov/index.php?option=com_content&task=view&id=662&Itemid=125" Lofgren Releases Sandia Labs Letter on SOPA], US House of Representatives, Nov 17 2011, "http://lofgren.house.gov/index.php?option=com_content&task=view&id=662&Itemid=125"
  30. ^ Leonard Napolitano, Sandia National Laboratories (Nov 16 2011), US House of Representatives, http://lofgren.house.gov/images/stories/pdf/napolitano_response_rep_lofgren_11_16_11_c.pdf
  31. ^ "ESET Open Letter". http://blog.eset.com/2011/11/15/sopa-and-pipa-and-dns-an-open-letter-to-congress. Retrieved 17 November 2011.
  32. ^ Sean Gallagher (Nov 17 2011), ["http://arstechnica.com/tech-policy/news/2011/11/anonymous-bit-dimnet-tries-to-be-a-hedge-against-dns-censorship.ars" Anonymous "dimnet" tries to create hedge against DNS censorship], Ars Technica, "http://arstechnica.com/tech-policy/news/2011/11/anonymous-bit-dimnet-tries-to-be-a-hedge-against-dns-censorship.ars"
  33. ^ "Tech Industry Open Letter". http://politechbot.com/docs/sopa.google.facebook.twitter.letter.111511.pdf. Retrieved 17 November 2011.
  34. ^ Corynne McSherry (Oct 28 2011), SOPA: Hollywood Finally Gets A Chance to Break the Internet, https://www.eff.org/deeplinks/2011/10/sopa-hollywood-finally-gets-chance-break-internet
  35. ^ James Allworth (Oct 28 2011), The Great Firewall of America, http://blogs.hbr.org/cs/2011/10/e-parasite_threatens_internet.html
  36. ^ Tim Donnelly (Noov 17 2011), Why Start-ups Are Scared of SOPA, Inc., http://www.inc.com/articles/201111/why-start-ups-are-scared-of-the-stop-internet-piracy-act.html, retrieved Nov 18 2011
  37. ^ a b c Press Resources; Commitee on the Judiciary; October 26, 2011
  38. ^ Corinne McSherry and Peter Eckersley (Nov 11 2011), Deep Links (Electronic Frontier Foundation), https://www.eff.org/deeplinks/2011/11/hollywood-new-war-on-software-freedom-and-internet-innovation
  39. ^ Jennifer Baker (Nov 18 2011), European Parliament Joins Criticism of SOPA, PC World, http://www.pcworld.com/businesscenter/article/244247/european_parliament_joins_criticism_of_sopa.html
  40. ^ Ryan Singel (Feb 24 2010), Microsoft Takes Down Whistleblower Site, Read the Secret Doc Here, Wired, http://www.wired.com/threatlevel/2010/02/microsoft-cryptome/, retrieved Nov 18 2011
  41. ^ Lance Whitney (Feb 25 2010), Microsoft action hits Cryptome Web site, CNET, http://news.cnet.com/8301-13578_3-10459676-38.html, retrieved Nov 18 2011
  42. ^ Diebold threatens Jim March, Chilling Effects, Set 4 2003, http://www.chillingeffects.org/fairuse/notice.cgi?NoticeID=1423, retrieved Nov 18 2011
  43. ^ Diebold Chases Host-to-Host-to-Links to e-Voting Memos, Chilling Effects, Set 4 2003, http://www.chillingeffects.org/linking/notice.cgi?NoticeID=911, retrieved Nov 18 2011
  44. ^ Jim March (Sept 18 2003), Jim March responds to Diebold's takedown demand, Chilling Effects, http://www.chillingeffects.org/responses/notice.cgi?NoticeID=4045
  45. ^ Rebecca MacKinnon (Nov 15 2011), Stop the Great Firewall of America, New York Times, http://www.nytimes.com/2011/11/16/opinion/firewall-law-could-infringe-on-free-speech.html?_r=1, retrieved Nov 18 2011
  46. ^ Bill H.R.3261; GovTrack.us; November 4, 2011
  47. ^ Chamber Presses Gas Pedal on IP Push; Politico - Morning Tech; September 22, 2011
  48. ^ Letter to Congress in Support of Legislation; Chamber of Commerce Global IP Center; September 22, 2011
  49. ^ Domestic Reality Does Not Match Bold Words on Internet Freedom of Expression, Nov 2, 2011, http://en.rsf.org/etats-unis-domestic-reality-does-not-match-02-11-2011,41324.html
  50. ^ Declan McCullagh (Nov 15 2011), SOPA: Opponents, http://news.cnet.com/8301-31921_3-57325134-281/google-facebook-zynga-oppose-new-sopa-copyright-bill/
  51. ^ Jay Walsh (Nov 15 2011). "Wikimedia supports American Censorship Day". The Wikimedia Foundation. http://blog.wikimedia.org/2011/11/15/wikimedia-supports-american-censorship-day/.
  52. ^ , http://www.reddit.com/r/announcements/comments/me5e9/american_censorship_day_stand_up_for/
  53. ^ Brandon Butler (Nov. 8, 2011). "Re: Stop Online Piracy Act, H.R. 3261" (PDF). Library Copyright Alliance. http://www.librarycopyrightalliance.org/bm~doc/lca-sopa-8nov11.pdf. Retrieved 10 November 2011.
  54. ^ "'American Censorship Day' Makes an Online Statement: The Ticker". 'American Censorship Day' Makes an Online Statement: The Ticker. Bloomberg. http://www.bloomberg.com/news/2011-11-16/-american-censorship-day-makes-an-online-statement-the-ticker.html. Retrieved 17 November 2011.
  55. ^ Timothy B. Lee (Nov 17 2011), Strange bedfellows: Nancy Pelosi, Ron Paul join SOPA opposition, Ars Technica, http://arstechnica.com/tech-policy/news/2011/11/strange-bedfellows-nancy-pelosi-ron-paul-join-sopa-opposition.ars

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