SOPA and PROTECT-IP: A Line-By-Line Analysis of the Bills We Must Kill
The Stop Online Piracy Act (SOPA), AKA H.R. 3261, is an extremely polarizing proposal to change the way that U.S. copyright enforcement works on the web. The supposed goal of SOPA and its sister bill in the Senate, PROTECT IP, is to help protect U.S. copyrights from foreign trespass. Yet the bills could grant powers well beyond those goals to both copyright holders and to the U.S. government.
What follows are my observations after reading both SOPA and PROTECT IP, complete with sourcing and explanations. I make no claim that my observations are exhaustive, but they may be of use for those interested in citing specific problems with SOPA.
SOPA was the more difficult of the two bills to read, in part because of its length and repetitiveness. To a greater extent than PROTECT IP, it references a variety of outside statutes with which I am not familiar. SOPA also has quite a bit of pork in it — but more on that in a moment. Most importantly, the title is the only part of the bill that actually deals with the supposed intent of SOPA.
SOPA’s first section is devoted to provisions attempting to allow the United States government to shut down foreign sites that infringe on copyrights held within the United States. This is a nearly impossible task — U.S. law in general holds no direct sway over foreign entities. Control can only be instituted domestically.
SOPA enumerates a pervasive program by which “foreign infringing sites” are to be controlled. It calls upon advertisers to pull all advertisements on foreign infringing sites and to cease financial transactions with such sites, payment networks to do the latter, and search engines to expunge links to the sites. It further requires service providers to cease allowing U.S. extensions of the site to exist.
You may not think this especially outrageous, but consider: the ability to file these suits rests with the federal attorney general (the ability of copyright holders to file suit comes with its own issues and is discussed more in the following section). As to the actual evidence the attorney general needs to start a suit, it’s a little short. There is a clue on page 10 where “foreign infringing sites” are defined as U.S.-directed sites whose owner is “committing or facilitating the commission of criminal violations” punishable under a laundry list of U.S.C. sections. The weasel words: “facilitating the commission.” Section 2319A and B of the U.S.C. are mentioned, for example, and if you look them up you’ll find that they provide against selling unauthorized recordings of live performances. If I am a foreign retailer selling cameras to bootleggers, among other people, am I facilitating the commission of that crime? How about cell phones? What if the site in question is an overseas branch of Ebay where some people sell bootleg American films the way bootleg animé is sold here?
The radius of effect expands quite a bit. Of course, it could also reasonably be argued this will have little effect on the experience of the average American. It would depend largely on how restrictive the government chose to be.
In passing, I’ll note that paragraph 3 of page 10 states that foreign infringing sites “would, by reason of acts described in paragraph (1), be subject to seizure in the United States … if such [a] site were a domestic internet site.” But puzzlingly, all paragraph 1 stipulates is that the site in question be a U.S.-directed site, and the definition of a “U.S.-directed site,” starting at line 18 of page 8, never once specifically states that sites must be foreign.
Whether that loophole would imply that the U.S. government has the right to seize domestic sites not because of a specific legal violation — those are enumerated in paragraph 2 — but simply because they are U.S. directed, I don’t know. If it does: how many U.S. sites can you think of that are not “used to conduct business directed to residents of the United States”?
The essential question becomes whether a judge would consider exploiting this wording to be in the spirit of the law or not. I’d just as soon it not be on the books at all.
You’ll notice that the question we return to in evaluating both the effects on foreign sites and the potential that this bill could be exploited to influence domestic sites is: “How far will the government push things?” While that answer is not readily forthcoming, the dozen or so pages where the rules are laid out for how service providers, search engines, payment networks, and advertizing services will be required to deal with foreign infringing sites are not encouraging.
When it was mentioned before, you may have noticed that the amount of control that Uncle Sam wants to exert over these groups is more suited to a murder investigation than, for example, illegal song downloads. In some ways, it’s even more invasive. It’s one thing for the government to request information with a court order, and quite another for it to dictate on a case-by-case basis how businesses deal with customers.
First, it sets a bad precedent at a bad time: the GM bailouts already pushed the limits, and this would put the U.S. government in very close association with all organizations aligned with the internet.
Secondly, as others have pointed out, the potential for censorship is strong. It’s likely possible to build weak cases against a host of foreign sites across the acts cited, and a weak case is all that is needed. As page 12 notes, injunctions can be issued “following commencement of an action” (emphasis mine), and these include injunctions “in an action brought in rem under paragraph 2″ (in rem means “against a thing,” and paragraph 2 is where the four groups prior mentioned are listed). As I read this, that allows for the effective censoring to be exercised not when the case is proven, but when it is opened.
Among my favorite sections is section 103, which purports to be a “Market-based system to protect U.S. Customers.” Make a note of it: these congressmen think forcing payment networks and advertisers to cease services to a website is “market-based.” Incidentally, does the stipulation sound familiar? In fact, the earlier section discussing how foreign infringing sites should be cut off gave very similar instructions to this one. The only major differences are that this section is with respect to copyright holders, not the attorney general, and deals specifically with payment networks and advertisers because they mediate transfer of capital to website operators. The … ahem … market-based top-down directive goes on to require specific agents be designated by these companies to handle the government’s notifications (page 28).
To me, this implies that they plan to have a lot of these notifications in the pipeline. Or then again, maybe they figure that forcing companies to hire people to deal with paperwork will stimulate the economy (largely because the idea of creating value is utterly alien to them).
Any bets on Sen. Mitch McConnell riding in with a compromise to save the bill and snatch defeat from the jaws of victory.
The Federal Government already has the power to take action against criminal web sites. There is an agency that is tasked with constant monitoring, since security breaches can be devastating to any organization that has an internet component.
See IC3 for example:
http://www.ic3.gov/default.aspx
I am concerned by this legislation, since the Federal Government has given itself unbridled authority to do whatever it wants, whenever it wants, to whomever, or TO IGNORE SAME WHENEVER IT WANTS, OR BENEFITS IT.
I’ve had an email account hijacked that has been used for spam ads. It could be used for more extreme criminal activity, and I wouldn’t know it until I was charged for violating some law, or it was shut down without notice, for some violation.
Complaining to the email provider did not resolve anything. In fact, the email provider seemed not to care because it was free advertising for the provider. Blocking fraudulent traffic only works for a short time. They’ll just hijack another account to use, or create another IP address.
At this point, giving any more power to the U.S. Congress is feeding an insatiable monster. It’s going to be hard enough throttling the beast it already is.
our pestilence of a congress is composed primarily of lawyers feathering their cushy jobs. these creepy crawlers and their giant head need to be able to silence the net this year when needed. fast and furious would never have seen the light of day had not bloggers and commenters kept injecting the truth into the smoke/obfuscation thrown up daily by the enemies of truth, the msm. calling groups/people nasty names (teabaggers, birthers) and shaming tactics are old hat. everybody and their mother have seen it, done it, tired of it. now the truth about our fraudulent fortulitous foundling frivolous fool of a fruitcake will need to be silenced. putting together disastrous ambiguous legislation is something these congresscritters are actually good at. get a bill that means nothing/anything, and enforce it to mean whatever. just watch the coin in my left hand and …
Threat analysis asks what an enemy _can_ do with their power,
not what they will do, and most certainly not what they claim
they will restrict themselves to doing; Kill the Bills.
I realize that there is a great deal of peer pressure on the web to get people to not use all caps under any circumstances, but the adherence to this prejudicial rule rendered your post to be less easily understood by me. Please, in future feel free to make use of all caps when it is appropriate so that people like me CAN understand your posts.
The first thing we should do is pass a resolution banning the cute, misleading, and outright dishonest names for these bills. I don’t know who comes up with SOPA, or Megan’s Act, or Net Neutrality, but that’s half the problem with these bills. People think they mean one thing, not knowing that either it’s a small provison of a bill with larger nastier things, or it’s complete newspeak (like Net Neutrality).
Personally, I would like all the official bill names to sound like a doctorial thesis title (they are equally dense to the average reader). SOPA becomes “The Proposal to Ban Independent Internet Bloggers from Quoting Sources, as a Copyright Infringement, Even if Said Sources are Cited.”
Obviously, the media and others would come up with some shorter nickname, but it might actually better describe the bill than it’s official name. Generally some misleading name that the sponsors of the bill came up with to make it more likely to pass.
Is this legislation befitting a nation that calls itself the Land of the Free? Or something we would expect from Stalin?
So let’s say a foreign site exists simply to publish anything that’s sent to it- whistleblower leaks, songs, cellphone videos, whatever. And somebody sends them a video clip or written material or just some kind of idle conjecture about current events that the AG doesn’t want US citizens to know about. All the AG has to do is browse the site for an unauthorized song or something similar and they can shut down access to the site? Am I missing something?
It is much more than that. The increased paperwork compliance, the threat of fines and jail time will make it more likely that this site would completely change their habit of punishing everything and either shut down or go in a new direction. At the very least it will make the cost of doing business online more expensive and it will make sites that provide access far more cautious.
If either piece of legislation passes, the harm could be felt most by independent artists and the websites that make it possible for them to express their work online.
Take Amazon, for example. Any writer can publish a book for Kindle. I would not be surprised to learn that in some cases some have infringed on the copyright of published works. In this case Amazon would be the facilitating site, certainly international in scope. So if the legislation creates burdensome paperwork, It will be the independent voices that will be silenced if the time and expense of the facilitating sites makes it infeasible to carry any tittles except those from publishing conglomerates.
Take sites such as WordPress that make it possible for any person to publish a blog. Certainly some are likely to infringe copyright in any number of ways. Will all suffer as a result of the facilitator – the host site – unknowingly permuting the infringement to occur?
The increased burden placed on website hosting companies is likely to increase the cost of maintaining a website for everyone.
Live Performance.
Let us say while giving a live interview to one of the big TV networks the President says something particularly stupid. (I know, this is a stretch, but play along for the sake of my example.) Later, while repeating the interview, the network judiciously omits this very stupid comment.
A blogger just happens to have recorded the original interview and cannot resist sharing the very stupid comment with readers.
The powerful network claims infringement of their live performance and demands the clip be removed.
Is that about it?
This could be interpreted to make covering a song without specifically approaching the copyright holder illegal
If so, this radically changes the situation which the performing rights organizations (ASCAP, BMI) have controlled for decades. Mounting plays is a different situation, and does involve the copyright holder. Have the alleged lawyers who’ve drafted these bills have any cognizance of performing arts laws? Seems they don’t.
The bill would also like to establish an intellectual property attaché for each region
Well, this is the Obama administration, and the more Democrat fonctionnaires on the payroll the better.
One glaring problem with the section highlighted here is that a common law term already exists, but was not here used, to describe what the section should be seeking to prohibit: willful blindness. Likewise, facilitating the commission should have the same standard as “Accessory Prior to the Fact.” A gun dealer is not liable for crimes committed with the guns he sells UNLESS he knowingly sold a weapon to someone who expressed intent to commit a crime with it.
SOPA and PIPA (the Senate version) are only part of the problem.
DHS is monitoring web sites for want I believe is a spurious excuse.
Dept. of Commerce is looking at Federal Net IDs.
Roll in Net Neutrality, the history of this administration and you’ve got a very scary picture.
I detail everything in this post here.
http://correspondencecommittee.com/Entry.aspx?ID=5646
How about Congress just quits with the law-making? I mean, it’s been three years since we’ve had a budget. I think they need to focus. And the only way we have is to threaten to vote against. In my case, that brings in worse than before.
We have enough laws. More than enough. Time to stop the stupid. I guess that means nuke DC. It’s gonna happen anyway – not literally, but when the money runs out, the rats will leave to seek easy money elsewhere. We will be left with the husk of a country.
Sorry, Arlington. But not very. Viva la revolution!
We should never judge a law, based on how it will affect us today. Government will grow these regulations far beyond the size and scope envisioned today. Federal income tax was never expected to rise above 6%. The EPA was created to stop pollution and now considers the air we exhale to be destroying the planet. We should be terrified that laws passed will allow indefinite detention and blocking of websites. These laws are great tools for an honest broker. But in the hands of a President who would rather be dictator lord only knows.
Some 40 years from now, these laws could bring horror on the people, or everything could be flowers and lollipops. However it is rarely to the peoples benefit.
If Eric Holder had his way, the only foreign sites we could see are the EU propaganda and the ANC racist crap from South Africa.
In order for this to work, they’ll also need a way to go back and sanitize all the archive sites, Google caches, wayback machine records and so forth. Youtubes of old political speeches can probably be deemed to be in violation.
Yeah, this is a bad bad bad… bad Bill. The thing about all this is, I think half the people voting for it, if not more, really have no idea what they are voting for. The RIAA and MPAA lobbyist whisper sweet nothings about protecting intellectual property, probably let them into a few backstage parties, and viola, they are all for it. Who couldn’t be for protecting intellectual property? Meanwhile a host of alphabet groups, government and civilian, are salivating for the law to go into effect. Organizations like RIAA and MPAA will immediately crush any non-sanctioned entertainment, and the government agencies will be, as they continue to be, the truncheon against speech perceived to be subversive.
I agree with whoever said we need a referendum on laws. Maybe if you could make it so that anyone who was going to vote on a bill would have to be present while it’s read aloud, word by word, there would probably be less of them then, and surely they wouldn’t be as long, and as full of erroneous vote buying crap as they are.
Let’s cut it neatly. Any action proposed by this criminal administration and indeed the presant leadership of the Democrat party is suspect and probably evil!
On your query:
One thing I have seen mentioned in relation to both SOPA and PROTECT-IP is that they supposedly allow large companies to sue smaller competitors for having insufficient defenses against infringing sites, even if they do not directly hold the copyright. While I could see such a thing coming about as a result of a tit-for-tat arrangement between government and a large enterprise, I could not find any specific line of text that demonstrates it. If anyone can, I’d be happy to add discussion on it.
You addressed the answer earlier in the article:
The weasel words: “facilitating the commission.”
I just found out about these bill a couple of days ago and have searched the Internet reading every post I could find. It seems lately that contacting our senators, congressmen, etc., do not seem to work. If this is a consumer driven industry and world then why can we not express our disapproval of government control and big business control by consumerism? We would have to stop going to the movies and concerts. Stop buying music, DVD/CD’s, movies, etc. Do not rent videos, etc. Is that the way to change the world? Consumers pay big business and big business pays the politicians. We would only be giving up things for pleasure, not for things that substain our lives. Could we do it? In the interest of protecting our freedom of speech and right to information, I think we could.
sklipyofficial youtube channel shutdown becuse acta , sopa , pipa !!!! f… his law