By Peter Suderman
There’s so much wrong with Congress’s new anti-piracy legislation that it’s hard to know where to start. SOPA, the Stop Online Piracy Act, is the House version of the Senate’s PROTECT IP act, and it would dramatically amp up the power of copyright holders to interfere with website operation, make it a felony for any website to stream copyrighted material, and essentially allow the blacklisting of entire domains. And while it would do all this in the name of protecting copyright holders, it probably wouldn’t actually stop much piracy.
Federal lawmakers aren’t exactly the most tech-savvy bunch, and that frequently leads to legislation that’s problematically vague. David Sohn at the Center for Democracy and Technology (CDT) explainshow copyright holders could take advantage of SOPA’s vague legislative language:
Another section of H.R. 3261 [SOPA] says that a website is "dedicated to theft of U.S. property" if (among several independent definitional prongs) it takes "deliberate actions to avoid confirming a high probability" of the use of the site to carry out copyright infringement. Not exactly a model of clarity. But the beauty of this provision, from the point of view of a rights holder, is that there is no need to go to court to puzzle through what this means. Instead, rights holders can decide for themselves. All they need is a good faith belief that a website is "avoiding confirming" infringement, and they can demand that payment systems and advertising networks cease doing business with the website. (Payment systems and ad networks are required to comply unless and until they receive a counter-notice, at which point they have discretion to reinstate the website pending a possible court order or just ignore the counter-notice and be done with it.) This seems like a backdoor way of imposing a monitoring obligation on any website that allows users to post content.
CNet contributor Larry Downes argues that the vagueness is actually intentional: “Where clarity isn’t possible,” he writes, “the drafters have opted for vagueness, open-ended definitions, and hedges. Even the term ‘including’ is defined, to be clear that it means ‘including but not limited to.’”
Meanwhile, the law incorporates a previously proposed provision making it a felony to stream copyrighted material over the web—which could mean severe criminal penalties for something as simple as posting a video of yourself singing a copyrighted tune on YouTube. Violators could face a fine and up to five years in prison. At Ars Technica, Reason contributor Timothy Lee interviewed Ryan Radia of the Competitive Enterprise Institute about the bill:
The legislation also incorporates a Senate proposal to make unauthorized streaming of copyrighted works a felony. "The problem is that there's no commercial gain requirement in the House version," Radia told Ars. And he argued that the dollar-value thresholds in SOPA are too low, creating a risk that minor offenders—maybe even Justin Bieber—will wind up in jail.
And it might not even work. The law relies on domain-name filtering to “disappear” offending websites. But as the CDT explained back in March, there are a variety of relatively simple ways for website operators to ensure the blocking has little effect:
Domain-name seizure and blocking can be easily circumvented, and thus will have little ultimate effect on online infringement.
The DNS performs a relatively simple function: translating text URLs (like www.cdt.org) into machine-readable IP addresses (like 126.96.36.199). Seizing a domain name involves ordering the relevant registrar or registry to effectively revoke the website's domain name registration, thus preventing the site from continuing to use that particular name. Blocking a domain name involves ordering a domain name lookup service (for most users, a function performed by their ISP) not to respond to any user request to look up the IP address associated with that name.
Significantly, neither seizing nor blocking a website’s domain name removes the site – or any infringing content – from the Internet. The site and all its contents remain connected at the same IP address. And there are numerous ways a targeted site may still be reached.
In the case of a domain name seizure, the site’s operator could simply register a new domain name for the site. For example, most of the sports-streaming sites connected to ten domains ICE seized in February quickly reappeared and are easily located at new domains. Alternatively or in addition, the site's operators could publicize its IP address, which users could then bookmark in lieu of saving or remembering the domain name. Or a site’s operators could distribute a small browser plug-in or other piece of software to allow users to retrieve the IP addresses of the operators’ servers. Such simple tools would make the process of following a site around the web virtually automatic. The same tactics could be used to evade domain name blocking.
So this will stop almost no one from accessing pirated material. As the Mercatus Center’s Jerry Britopoints out at Time’s Techland, you can find sites that host pirated material but are listed only by IP address through a simply Google search. Worse, the blacklisting sets a dangerous precedent for global Internet governance. Here’s Brito again:
At a moment when Secretary of State Hillary Clinton is urging world governments to keep their hands off the Internet, creating a blacklist would send the wrong message. And not just to China or Iran, which already engage in DNS filtering, but to liberal democracies that might want to block information they find naughty. Imagine if the U.K. created a blacklist of American newspapers that its courts found violated celebrities' privacy? Or what if France blocked American sites it believed contained hate speech? We forget, but those countries don't have a First Amendment. The result could be a virtually broken Internet where some sites exist for half the world and not for the other.
There are a lot of folks invested in the fear that big corporate telecom operators might block off parts of the Internet, despite almost no actual examples of this happening. There's plenty of evidence, however, that governments all over the world are willing to take extraordinary measures to attempt to monitor, control, and block Internet access; SOPA would make the expansion of such measures even more likely.