What’s Up With SOPA?, Part I

A Related Summary of this Essay: The TL;DR Version of SOPA Opposition

Collectively, “SOPA” is actually referring to two things — the House of Representatives “Stop Online Piracy Act” (SOPA) and the Senate “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act” (PROTECT-IP or PIPA). These bills both seek to curtail intellectual property theft in similar ways. But what is the deal?

It would be surprising if you’re visiting Greatplay.net and don’t know about the SOPA protests that took place last Wednesday (January 18, 2012) on websites that have more than two orders of magnitude more traffic more than me. Wikipedia chose to shut down for an entire day; Reddit chose to shut down for a twelve hour period; Google hosted a protest banner; numerous comic websites such as SMBC, XKCD, Dinosaur Comics, The Oatmeal, and Cyanide and Happiness all hosted protest images or outright shut down; and thousands of other sites hosted protest images or shut down in response.

So needless to say, SOPA is pretty bad, right? Where was my protest image? Well, I didn’t want to protest or put any personal stake in being against legislation until I had thoroughly analyzed it and checked all the claims that were being made to the best of my ability. And I urge you to do the same — actually read the two bills (SOPA and PIPA) and explore all of the commentary.

But I’m now ready to share the products of my thorough analysis and show you what’s really up with all this anti-SOPA business — why people are protesting, where they go right, and where they go wrong. I will protest SOPA by giving you the reasoning and fact sources as unbiasedly as possible, so that you can see that opposition to SOPA stands up on solid ground — the best kind of protest is sharing the facts.

And this is important, because while SOPA ought to be opposed for numerous reasons, much of the opposition to SOPA is indeed knee-jerk and exaggerated, based on both willful and accidental distortions of what is really going on.

 

 

How Does Internet Copyright Work?

Before we can analyze SOPA, we must first know how copyright is currently treated by law. Legally, a copyright is something you have that allows you to protect your original works from unwanted duplication and/or re-appropriation by others. Thanks to the Berne Convention, an international copyright treaty encoded into US Law in the United States Copyright Act of 1976 everything I write is copyrighted the moment I write it on this site. I have no legal requirement to register my copyright, though registration is very helpful in proving that I am the original author if I wanted to sue.

Specifically on this site, I have a Creative Commons 3.0 By-Sa License, which means that I give permission for anyone to duplicate and modify my work provided that they provide a visible attribution (say they got it from me) and share the result under the same license. These are rights I give up willingly, and I definitely do not have to do this.

Now here is where it gets a bid odd — what about all those comments people leave on my site? Those are owned by the authors under their personal copyright, thus making this website a hodgepodge of works copyrighted by multiple authors. But what about those essays where I quote others at length and reprint their work under my own copyright? That’s made possible by a thing called fair use which allows, among other things, short excerpts produced with attribution for the purposes of commentary.

But now let’s make it a bit complicated. What would happen if, as an essay, I posted the entire Harry Potter series for anyone to read? This is definitely not fair use, instead it is a copyright violation and constitutes intellectual property theft. The law at play here is the Digital Millenium Copyright Act (DMCA), which allows companies to issue court orders for websites to take down copyrighted material. If found with my copy of Harry Potter, I would be ordered to take it down and face additional penalties such as a small fine and/or some jail time.

But that’s not nearly complicated enough — remember that websites are hodgepodges of multiple copyrights by multiple authors. What would happen if one of my lovely commenters chose to post the entire Harry Potter series on my site? Well, I could personally be given a DMCA take-down request, which is a court order that orders me to remove the infringing comment. Provided I do so within a short time-period, I will face no additional penalties. I am what DMCA deems a “safe harbor”, where I am protected from liability of hosting copyrighted material provided that the copyright was not violated by me personally and provided that I comply with all take-down requests.

 

 

What Does SOPA Do?

The current law is open to a complaint: sometimes websites with millions of users so repeatedly violate copyright that the companies have to work full-time to patrol for violations and serve take-down requests. Additionally, websites can actually create a business model where they encourage (or at least look the other way) copyright violation and then rake in advertising and subscription revenue, all while playing ignorant and complying with take-down orders as they slowly come in. Because there will be a constant stream of new copyrighted material from new users, this business model is fairly profitable.

Another big focus of SOPA are websites that sell counterfeit drugs in a way that scams the user into thinking the drugs are legitimate. They do this by masquerading as legitimate websites through the theft and misappropriation of logos, including that of the Better Business Bureau, not to mention the theft of pharmaceutical logos.

The rationale of SOPA is thus that the DMCA is not going far enough to prevent websites such as these from engaging in widespread and systematic intellectual theft for personal profit.

 

But how does SOPA accomplish this? SOPA seeks to give new authority to the US Department of Justice and copyright holders to seek court orders to disable entire sites “dedicated to copyright infringement”.

Under the current law (DMCA), court orders can only require the take-down of material. SOPA greatly broadens this, allowing for search engines to be ordered to delist infringing sites, allowing payment transfer agencies like PayPal to be ordered to no longer allow transactions to infringing sites, and allowing Domain Name Registrars and Internet Service Providers to block access to the domain name of infringing sites.

SOPA will also greatly reduce the “safe harbor” provision seen in the DMCA, greatly increasing the responsibility of sites to combat copyright infringement themselves through the scanning and regulating of their own material, rather than wait for take-down requests. SOPA would allow an entire site to be blocked because its users engage in copyright theft on their own accord.

This sounds like the kind of legislation we wouldn’t want around, but is it really? Let’s look at some common arguments against SOPA and see how well they stand up.

 

 

Does SOPA Place an Unfair Burden on Websites?

The first argument against SOPA is that, in restricting the safe harbor laws, it places an unfair burden on websites to regulate their own content. Websites such as Reddit, where the vast majority of content is legitimate, will still find themselves under SOPA having to patrol the millions of posts with filters to find and remove copyrighted material and then put in place methods to block that material from ever being posted again. Given how notorious people are about circumventing filters and blockers, accomplishing this would be a large technical challenge for sites.

The argument goes that this burden could be met, given that Google was historically able to accomplish it in China (before they backed out), but it seems likely that this would provide a significant hurdle to much smaller sites like Reddit. Additionally, it would be even more difficult for sites with more complex and harder to filter content like YouTube. It would also be a very large financial barrier to startup companies who wouldn’t have the resources to patrol all of their content.

 

This difficulty is compounded by the fact that there is no central database of all copyrighted works. As I said earlier, this text that I am now writing is copyrighted, but if someone were to copy and paste this sentence into some obscure subreddit, how would Reddit be able to distinguish it from a normal comment? What would happen if I were to sue? As much as I would like it to be Reddit’s legal duty to read every post on Greatplay.net, that does seem to be an unfair burden. There are still many nuances to work out here.

It seems apt to say that requiring websites to be responsible for all content posted by users is akin to saying that restaurants should be responsible for any murders that take place in their property by their customers. While difficult given internet anonymity, the responsibility should be on the user, and it seems fair for websites to only have to abide by take-down requests.

That being said, websites that show repeated and systematic violations of copyright, such as having a large percentage of files be copyrighted material and have copyrighted material not regularly taken down when found, do need to be dealt with in a manner that is not handled very well under current law.

 

 

Will SOPA Actually Stop Intellectual Theft?

Another interesting complaint is that SOPA won’t even do what it is supposed to do! One version of the argument appeals to the idea that pirates will always find a way, but if SOPA manages to make it more difficult for people to access copyrighted material, then it has arguably accomplished something — and it probably will do this by shutting down many sites.

A second, more technical version of this argument appeals to how SOPA intends to have sites blocked. Since many sites outside of the US are outside the jurisdiction of the US to directly shut down, the government will instead have their websites delisted from the Domain Name Registrar. The way this works is that, in reality, sites exist as a series of numbers like 163.129.308.417 which are connected to domain names like www.example.com.

The government could then sever this connection, so that going to www.example.com won’t direct you to 163.129.308.417 and thus not get you the content. But pirates who are in the know could just access 163.129.308.417 directly and circumvent this block. Thus, as this argument goes, all the government has done is put the tiniest of hurdles in front of the pirate, while severely inconveniencing all of the legal users. This is the same reason everyone hates DRM.

SOPA, however, provides a few other opportunities to shut down a site besides delisting the domain name — SOPA authorizes the delisting of the site from search engines and also authorizes money transfer companies to stop working with the website in question, thus cutting them off from their ad revenue. For most sites, this will be the end of their business model, and thus the end of the site.

However, I imagine that very dedicated peer-to-peer networks could still be kept alive by individual contributions of their members and/or through the use of money transfer companies outside US jurisdiction. It’s also likely that the passage of SOPA would create the necessary demand to spur the creation of even more foreign companies that would allow sites to circumvent SOPA.

 

 

What About This Whole Domestic-Foreign Thing?

Speaking of jurisdiction and handling foreign websites, what about this whole domestic-foreign distinction? The bill’s definition for a “domestic site” is any site with an American domain name (primarially .com, .net, .org, and .edu) and defines “foreign site” as any site that doesn’t have an American domain name. This makes odd distinctions, such as placing “redd.it”, a fun abbreviation of the Reddit domain name as a foreign site, and placing “thepiratebay.org”, a famous Swedish site dedicated to copyright infringement, as a domestic site.

Why does this matter? It goes back to a stated goal of SOPA to only go after foreign sites by delisting them across America. While it is questionable whether SOPA actually has this goal, it goes to show how SOPA’s scope is unknown due to having vague language.

 

 

Is SOPA Ripe for Abuse?

Speaking of vague language (I love how these transitions just seem to work!), another complaint about SOPA is that it will be taken advantage of through stretching this vague language to shut down what is, in reality, innocent. For instance, I could personally try to shut down a site I don’t like by posting copyrighted works from multiple anonymous accounts and then reporting it to the Department of Justice.

Initially, claims of abuse seem exaggerated. But copyright holders do have a history of overreaching. Viacom was accused by Google of uploading its own copyrighted content to YouTube and then suing Google, the owner of YouTube, for damages — with Viacom employees even going as far as uploading content from Kinkos and doctoring it to look stolen. Another company, Universal, was caught taking down material under a copyright claim for a copyright they didn’t even own.

Not only will it be notoriously difficult for content hosters to distinguish copyrighted material from legitimate material, it seems far too easy for companies to sneak their own material onto sites they want to see banned. Additionally, SOPA could be abused on its vague language alone.

 

 

Intermission

I’m going to cut this essay a bit short due to length, and continue it in second, forthcoming part. Right now we seem to have a rather convincing case that SOPA has far more costs than benefits — it would be a small step at combating piracy, especially from foreign sources; but it would come at the cost of placing a very unfair burden on websites and containing vague language that provides many options for abuse that history shows us will actually be taken advantage of.

In the next essay, I intend to talk about the MegaUpload situation, cyber-security issues, claims that SOPA is tantamount to censorship, claims that SOPA is unconstitutional, claims that other countries will see SOPA as precedent and make versions of the bill on their own. Then I will summarize the cases for and against SOPA and discuss what we can do about it.

Directly Continued in: What’s Up With SOPA, Part II

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I now blog at EverydayUtilitarian.com. I hope you'll join me at my new blog! This page has been left as an archive.

On 20 Jan 2012 in All, Political Commentary. No Comments.

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