SOPA, PIPA, the blackout ... I’m confused?
It’s not surprising: US legislators seem to have an unhealthy addiction to acronyms.
SOPA is the Stop Online Piracy Act (HR 3261) introduced in the House of Representatives by Congressman Lamar Smith in October last year. The original version is available here and an amended version here.
The Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP Act or PIPA, S 968) is a parallel bill in the Senate, introduced by Senator Patrick Leahy in May last year. It is available here.
There is a third bill being discussed called OPEN, which stands for Online Protection and Digital Enforcement Act (S 2029). It was introduced in December. OPEN is different in several respects to the other two bills, notably in that it envisages that the International Trade Commission (ITC) would have an enforcement role. It can be read here.
None of the bills has yet been passed.
What’s behind the bills?
The bills are designed to tackle so-called rogue websites that are devoted to infringing US IP rights. These include sites that illegally stream movies, TV shows, music and sport as well as those that sell counterfeit goods such as pharmaceuticals that are targeted at US consumers.
Over the past two years US Immigration and Customs Enforcement (ICE – another acronym) has led a high-profile campaign called Operation In Our Sites to close down and seize domains that host or offer for sale infringing content.
While the operation has had some success, many operators simply start new sites every time an old one is closed down. Moreover, many of the most egregious sites are hosted outside of the United States, so the operators are out of the reach of US courts and cannot be fined or imprisoned.
The bills aim to tackle that. They are aimed specifically at “foreign” websites that are “dedicated to the theft of US intellectual property” and provide for court actions to be brought by the US Attorney General or rights owners. Crucially, the bills seek to block access to pirate sites by allowing courts to make orders against intermediaries such as ISPs, search engines, credit card companies and advertising sites.
The bills to some extent take over from where the Digital Millennium Copyright Act (DMCA), which was enacted in 1998, left off. The DMCA was passed before the growth of social media and online video and the increase in broadband speeds. Today, for example, it is estimated that 48 hours of video are uploaded on to YouTube every minute.
While cases have been brought against sites such as YouTube and Veoh under the DMCA, copyright owners have often been left frustrated as the courts have interpreted the Act’s safe harbour provisions quite broadly.
The appeal decision in the $1 billion case between Viacom and YouTube is expected from the Second Circuit in the next few months.
Who opposes the bills and why?
Opponents of the bills include free speech and open source campaigners, as well as operators of websites who fear they will be caught by the legislation despite not being involved in piracy.
Google has been the most high-profile company to challenge the bills.
Opponents argue that the proposals amount to censorship, will disrupt the internet, punish innocent parties and impose unreasonable burdens on intermediary websites. In the light of a recent decision to extradite a UK man accused of copyright piracy, there are also worries that they would extend the jurisdiction of US courts to other countries.
The Electronic Frontier Foundation has summarised its specific concerns.
First, it says anti-circumvention provisions would contravene the First Amendment, force sites to police user-generated content and “decimate the open source community”. This provision is in Section 102(c)(3)(A)(ii) of Smith’s manager’s amendment of SOPA.
Second, it says the Act would encourage overblocking by service providers who wish to receive immunity (Section 105(a)).
Third, it objects to copyright owners having the right to seek court orders against foreign websites, saying that similar rights under the DMCA are being abused. Section 103 of SOPA sets out a two-step process for rights holders to take action.
Fourth, it still has concerns about the ability of the Attorney General to block domain services, even though these have been scaled back. This issue is covered in Section 102 of the Act.
What happened yesterday?
Up to 7,000 websites shut down in whole or part yesterday, and many bloggers and tweeters went silent, as a protest against SOPA.
The most notable site to act was Wikipedia, which blacked out its English-language version as a protest following discussion among nearly 2,000 users (other versions, including the simple-English one, were running as normal). The bills do not appear to target sites such as Wikipedia, but users appeared to want to use its profile to raise their concerns.
Following the blackout, the site said: “More than 162 million people saw our message asking if you could imagine a world without free knowledge. You said no. You shut down Congress’s switchboards. You melted their servers. From all around the world your messages dominated social media and the news. Millions of people have spoken in defense of a free and open Internet.”
It is worth noting that Wikipedia is a charitable institution with no paying customers, shareholders or investors. Sites such as Facebook, Twitter and Google functioned as normal – though the latter did black out its dynamic logo.
Petitions opposing the bills have attracted more than 50,000 signatures.
So does anyone support the bills?
The House of Representatives lists more than 100 supporters of SOPA. They include broadcasters (ABC, CBS, Comcast, ESPN), music companies (Sony, Universal, Warner Music), publishers (News Corporation, Pearson, Random House), sports bodies (Major League Baseball, NFL) and other brand owners (Estée Lauder, L’Oréal, Pfizer, Revlon, Tiffany). Mastercard and Visa are also listed.
The list includes many trade associations and unions in IP-related industries. The movie industry alone claims that it supports 2.2 million US workers, pays $15 billion annually in tax and is losing $5 billion each year to piracy.
The Business Software Alliance, which counts both copyright owners and tech companies among its members, originally backed SOPA but later withdrew its support.
Will the blackout make any difference?
It’s certainly raised the profile of the debate. In fact, though, many of the issues highlighted by Wikipedia and others were already being discussed.
An updated version of SOPA, known as the manager’s amendment, was published in December and led to a lively hearing. It addressed much of what tech companies complained about, such as removing the requirement for intermediaries to act within five days; not specifying domain name blocking; and removing the requirement to target sub-domains.
Last week, President Obama’s IP tsar Victoria Espinel co-authored a statement saying: “[W]e will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.”
But the statement went on to emphasise the need to tackle rogue sites both through legislation and voluntary measures. “We should all be committed to working with all interested constituencies to develop new legal tools to protect global intellectual property rights without jeopardizing the openness of the Internet,” it said.
Meanwhile, some sponsors of the bills have recently withdrawn their support.
In the Senate, a hearing scheduled for this week has been postponed to next month. The House of Representatives is due to vote on PIPA next week, though that could also be delayed.
Does that mean the opponents of the bills have won?
Not necessarily. The likelihood is that SOPA and PIPA will form the basis of whatever legislation is enacted, though the details will change. And once two bills are passed they will have to be reconciled, which will take time.
Given the controversy, the divisions in Congress, the complexity of the legislation, other political priorities and the fact that 2012 is an election year, there is no guarantee that any bills will be passed soon.
Is it only the US tackling this problem?
The United States is particularly vulnerable due to the importance of the creative industries (including movies, music and sports) in its economy.
But many other countries have also tried to tackle pirate/counterfeit sites, including by targeting intermediaries.
The UK’s Digital Economy Act imposes obligations on ISPs to record and report copyright infringements. It has not yet been implemented and telecoms companies BT and TalkTalk were again in court this week, seeking to have the Act reviewed on the grounds that it does not comply with EU law. Separately, a judge ordered BT to block access to the Newzbin file-sharing site, after it sought to escape jurisdiction by moving its servers offshore and changing its name.
France has passed the so-called Hadopi Act and Spain announced anti-piracy legislation at the end of last year. New Zealand is another country that prompted a blackout with its anti-piracy proposals. Earlier this month, the European Commission published its own proposals.
In Sweden, the operators of the Pirate Bay file-sharing site were given prison sentences after being found guilty of copyright infringement. The site survived that blow, but this month a Dutch court ordered cable companies to block access to the site.
For more articles on the topic of ISP liability, click here.