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SOPA and PROTECT-IP: A Line-By-Line Analysis of the Bills We Must Kill

Unconscionable power grabs. Call your congressmen with this.

by
Bill Reader

Bio

January 14, 2012 - 12:47 am

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).

That is not my greatest concern with this section, however. I simply wanted the context to be clear before bringing it up. Back in the definitions under which these rules are operating is the definition of a site against which actions should be taken. In the first section, it was a “foreign infringing site.” Here, actions are taken if an “internet site is dedicated to theft of U.S. property.” Since this regards private copyrights, you may already be asking where exactly the U.S. gets off calling them U.S. property. The answer, I suspect, is that we are living in the era of “tax expenditures,” and politicians have now transferred to openly discussing our money and property as though it belonged to them.

We’ll leave aside this disturbing philosophical stance for the moment, though. There are two conditions under which a site qualifies as being “dedicated to theft of U.S. property.” One is that it must be U.S. directed, which, as I mentioned at the beginning, includes not just foreign sites but most domestic sites. The other is a choice of two conditions. One possibility is that it appears to be made specifically for the purpose of breaking certain laws — dealing generally with copyrights owned by the actual U.S. government (the only law that has any business being in this section), circumventing copy protection, and counterfeiting. The other possibility? Here I’m going to pull out a blockquote, because it has to be seen to be believed:

(I) is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation of section 501 or 1201 of title 17, United States Code.

Sections 501 and 1201 are the first two laws I mentioned previously. Feel free to look at page 26, line 3 if you think I made that quote up. And in case the problems with the statement aren’t immediately clear, I’d like to do a few thought experiments with that sentence.

First, what constitutes “deliberate actions”? If it never occurred to me that the U.S. copyright holders would consider my site as violating these laws, and I decide not to notify them on that basis, it’s arguably a deliberate action. Second, note that avoiding “confirming a high probability” of your site being used for illegal activities means, under this bill, that you are stealing. Whether the site actually is used for those purposes is immaterial, evidently.

What if I do not believe my site is used for illegal activities? Or I believe it could be used for illegal activities, but the probability of it happening is low? Answer: according to this section, I am automatically considered to be stealing. You don’t need to be a lawyer to see an obvious catch-22. This section happens to restrict suits to copyright holders, but it’s a small consolation when crony capitalism is rife: if the government wanted to exploit this power, it certainly could.

In the interest of completeness, I’ll note that promoting the use of the site for illegal activities is listed as an alternative way to fulfill the second part of that biconditional.

Now, the punch is pulled slightly on page 30, since this section actually requires identification of the specific way in which the website’s activities will result in irreparable loss or damage to copyright holders. Don’t put down your pitchforks and torches yet, however. Bear in mind that this in no way settles whether this will allow people to make claims that if an infringement were occurring, they would be losing revenue. This section is still dangerous, any way you slice it.

I should mention, since someone is sure to, that this section also contains a process for counter-notifying in order to limit the injunctive effects prior noted. I have two comments on that. One: how very generous of them to institute punishment first, then appeal. Two: the way the bill is written, it’s a devil’s bargain. You’ve got to consent to U.S. jurisdiction, to begin with. You also need to hand over quite a bit of personal information to the U.S. government. In the end, you’re throwing yourself at the mercy of the U.S. government and legal system, which might sound like a bargain in Sharia-laden England, but is still a risky move. I strongly suspect, and I think the writers of the bill likewise feel, that a website owner is more likely to just abandon the U.S. market.

There is also some extended discussion of procedures if a counter-notification was found to be in error, as well as a section on procedures for dropping or modifying the suit that are similar to sections of the same kind early in the first title. For the sake of brevity, having seen nothing of any particular interest as I read them, I have skipped them here.

The next section deals with immunity from suit being provided for companies that take action against foreign infringing sites or sites that steal “U.S. property.” Actually, this section gives very broad powers to any company that chooses to go vigilante on Uncle Sam’s behalf. As prior mentioned, this type of relationship is worrisome. We’ve seen the U.S. government use influence on specific companies in order to get certain results before — that sort of dealmaking is why certain companies are specifically excepted in Obamacare. Crony capitalism could just as well be leveraged here, with the U.S. government leaning on companies to “voluntarily” cut access to foreign companies in return for benefits, and the U.S. government covering for them when questions are raised as to why. It’s just one more way that this bill could lead to censorship.

Title One is rounded out by some porky provisions against sites involved in misbranding or counterfeiting of prescription medication. What this is doing in a piracy bill eludes me. It’s clearly substantially different from copyright infringement, which is the major focus of the bill. If a site is distributing counterfeit prescription medication with a misappropriated brand name, I feel that only a government bureaucrat would focus on the latter aspect.

The last two sections of Title One I will sum up simply. The second-to-last establishes some new government make-work and expands the central government’s duties a little bit. No surprises there, since it is, after all, a government bill. The last portion is apparently supposed to allow the U.S. government to take broader actions against especially notorious copyright infringers. Probably the most important part of the section is that the U.S. government wants to give serious consideration to prohibiting foreign infringers from raising capital in the United States.

It’s an interesting idea in theory, but I think the only ultimate result would be to keep money out of the United States. Piracy would continue totally unabated, I suspect, even if this passed. The government can change only the ability of people in the United States to get hold of things pirated from copyright holders in the United States. How much disincentive does being banned from the country hold to a person running a streaming service in India, exactly? Well, they won’t come here for a vacation home. Guess that’s something.

Title Two of SOPA is well known on the internet because it offers censorship of a completely different kind. Pages 54-59, right at the beginning, enumerate a number of changes to Title 17 and 18 of the U.S.C. which, if they passed, could do some very nasty things to copyright laws in the United States.

The first modification is that “public performances,” including by internet, are added as copyright violations to every section on par with making copies and distributing them. There is a pseudo-limitation in that it’s only a violation if the owner was intending on distributing or disseminating the work commercially, or on not disseminating it at all. The best I can tell, the only other case that exists is non-commercial dissemination or distribution. That may sound like it changes the current situation very little, but it changes quite a lot.

The biggest concern is that this change will be used to stymie critiques of games, movies, et cetera. This change alone would certainly wreak havoc on several internet cottage industries, including sites that do “Let’s Play” game playthroughs, or certain song reviews. Potentially even reviews of short games would be affected, with more possibly following depending on strictness of interpretation.

This could be interpreted to make covering a song without specifically approaching the copyright holder illegal. It could even put restrictions on political candidates wanting to play or quote parts of an opponent’s speeches, if they were recorded by news organizations that claim the recordings. Note also that a proposed change of wording in Title 18 of the U.S.C. would allow one year of imprisonment to be an automatic option for making even one copy of a copyrighted work, and will remove the $1,000 minimum damage previously required for that option. If the music industry lobby gets that particular bauble passed, I shudder to imagine what the effects would be, but I can tell you it wouldn’t be pretty.

I’d also like to direct your attention to a change the bill makes in the way the value of a copyrighted work is found. It wouldn’t just be the total value of the reproductions. The word “dissemination” is used instead of “distribution” in many of the proposed changes specifically because the bill is extending into the realm of works that are free but available through a commercial enterprise. In fact, as lines 3-13 of page 59 describe, the “value” of the copyrighted work would also include both the price of licensing and any advertising revenue made from the reproduction. If this were from a Let’s Play made by an internet reviewer, for example, it would mean loss of income from the play-through, plus the additional cost of the various fines.

Up through page 66 is another devolution into a discussion of counterfeit drugs. Not sure what lobby is responsible for this, or why. I’ll take this opportunity to restate something I repeat whenever I can: we must push for single-issue bills in the government. If the contents of a bill can’t stand without dealmaking on totally separate issues, they can’t stand at all. And we’ve had enough omnibus bills for one millennium.

Sections 203 and 204 of SOPA deal primarily with increasing the rigor of laws designed to protect against corporate espionage from foreign sources. There are two major problems with these sections. One is that, as with the above, they are only tangentially related to internet piracy. The other is that I don’t think there’s much you can do to corporate espionage laws — which are already pretty strict — to stop it from occurring. It’s already a sufficiently dangerous enterprise that I think toughening the punishments is more for show than actual effect. Then again, this is the same government that brought you the Transportation Security Administration.

Finally, the very last section in the bill covers defending property rights abroad. This is where the bill has serious delusions of grandeur. To begin with, it wants to force the secretary of State and secretary of Commerce to prioritize respecting U.S. copyrights as a “significant component of United States foreign and commercial policy in general, and in relations with individual countries in particular.”

I’m not sure what exactly that’s supposed to mean.

To begin with: even if we were successful in this respect, is encouraging world governments to monitor the actions of their citizens more closely really the way we want to play this?

I think we might find that incentivizing governments to more carefully restrict what their citizens do with audiovisual media might just backfire. We haven’t even begun to discuss how world governments would actually exercise the control we would be asking for. The simplest way would be to embargo U.S. products, which they might do if the threats were severe enough. Would that count as a win?

Speaking of severity of threats, what do they plan to do if other countries do not acquiesce? Go to war? It would certainly count as “aggressive support for enforcement action against violations of the intellectual property rights of United States persons,” I suppose.

The bill would also like to establish an intellectual property attaché for each region we have foreign relation interests in. Such attachés would be tasked with addressing, at a national level, copyright violations in other countries, with an emphasis on “countries where the activities of an attaché are likely to achieve the greatest potential benefit in reducing intellectual property infringement.” How, I wonder? Does the presence of diplomatic attachés make copyright violations evaporate? Even if other countries don’t call the bluff I mentioned in the last paragraph (at least, for the sake of my sanity, I’m praying it’s a bluff), it just brings us back to the question of what exactly you want them to do about the problem.

The whole thing is gift-wrapped with a promise to make lots of new reports to Congress and a bunch of definitions for the terms we just read.

One thing I noticed, as I finished reading SOPA, was that it did not contain all the things I’ve heard about. Part of the reason for this is that they are actually in the sister bill, PROTECT-IP. Before I talk about the effects in a more general sense, I’d therefore like to briefly examine PROTECT-IP as well.

First things first: if you, by some misfortune, have already read PROTECT-IP, you may find the ballgame has changed. The original PROTECT-IP act was systematically crossed out and replaced with different text.

One interesting thing about PROTECT-IP is that it does in a few lines in the definitions section what SOPA took five-plus pages to do. On lines 12-13 of page 32 (the second page of the new text), it simply lumps public performance in with other things that constitute copyright infringement. It is just one of many aspects of the bill that make it appear nearly identical to SOPA in actual content. About all you can say in favor of the bill is that it contains less pork, but unfortunately, the core is still just as unredeemable.

One particularly troublesome aspect of PROTECT-IP is that it loosens the already unacceptable parameters of SOPA until they’re meaningless. For example, the rules for being counted as an infringing site, listed at the bottom of page 35 and the top of 36, now require only that the site a) is accessible by and directs business towards U.S. residents, and b) “harms holders of United States intellectual property rights.” The sentence is so general it barely exists.

You could argue that being in competition with a copyright holder is potentially harming them: what if a Swedish techno band is better than the American ones on offer?

I’m also not happy with what PROTECT-IP calls a “qualifying plaintiff” (top of 34) in one of these suits. I’ll give SOPA its due: it at least required crony capitalism for the government to exploit many of the loopholes. PROTECT-IP dispenses with that. The attorney general is defined as a qualifying plaintiff for all cases of this type. Censorship just got that much easier.

Although much of the bill is very similar to SOPA, one or two distinct aspects stand out. One is that PROTECT-IP deals with “information location tools,” rather than “search engines.” The difference is that information location tools are actually officially defined as “including a directory, index, reference, pointer, or hypertext link.” It empowers the federal government to go after individuals that link to sites that are considered to be infringing, in other words. In a bill that already is derided as being a breath away from censorship, it’s not a good thing to see. The alternative to walking the line would, naturally, be a lawsuit.

A bit of pork that managed to stay in is the subsection regarding responding to sites that market counterfeit drugs. It’s significantly shorter, but its reemergence is puzzling. It still does not seem to qualify as piracy in the normal sense of the term.

Like SOPA, PROTECT-IP closes out with a laundry list of government reports to be made. Right at the end, there is also a slightly concerning section on preventing import of “Counterfeit Products and Infringing Devices.” It’s troublesome insofar as the way it is worded could be used to prevent us from importing, say, DVD burners, but it’s hardly worth mentioning in comparison to everything else.

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.

One thing that’s interesting to me is the substantial similarities between SOPA and PROTECT-IP. My guess is that legislators are hoping that if one fails the other will get through. A similar process was used to force Obamacare, except that process used two substantially different bills that had passed and then (illegally) used the reconciliation process to combine them. Of course, when it comes to two-bill tactics, the Obama administration wrote the book. Or rather, it wrote two books, in case they needed to throw one book under the bus due to public outcry.

SOPA and PROTECT-IP could still go that route, potentially, since there are differences in the bills. More likely, I suspect that legislators will let one bill fail gracefully and then intentionally confuse the matter until the other bill can slip through under the radar. Legislators have the odd belief that once a bill is passed it disappears.

I find it hard to disagree with those arguing that both bills could be exploited to censor foreign internet sites. Censoring of foreign sites being one of the signature policies of China, I think that the largely bipartisan backlash I’ve seen is fully justified. I also think that some aspects of the bill, such as the “punishment first, appeal second” approach, which is very much in the spirit of “guilty until proven innocent,” resonate as wrong with a wide band of Americans on both sides of the aisle.

So, while I didn’t see some of the specific loopholes I’ve heard mentioned, the takeaway is that there are definitely plenty of ways both bills could be exploited in the name of censorship, both foreign and domestic. And there are enough loopholes that no simple editing session is going to fix these bills.

The only remedy: they’ve both got to go.

I know I’m not the first to say it, but we simply have no other choice: I’d strongly advise anyone who wants the internet to stay free to contact their congressmen in both the House and Senate and to stick with it until both bills are gone. If one or the other gets through, we’ve got troubles.

The other thing you can do is tell as many people as you can. I, myself, only found out about this bill last week. I doubt I’m the only one. Fortunately, the spirit of the internet is communication. SOPA, by contrast, is written to put a serious damper on our ability to communicate. The two drives certainly cannot coexist.

In other words, SOPA will pass only if we have already let it win.

Frustrated with spin, writer Bill Reader does what even the people making the laws don't do: actually read them.
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