Article by: Sir Rant A. Lot (Guest contributor)
13 years ago, in 1998, the DMCA (Digital Millennium Copyright Act) was passed to protect websites and ISPs from lawsuits based on the activities of their users. It was considered a “Safe Harbor” for Website owners.
The new bill on Capitol Hill would circumvent that law leaving most of the World Wide Web open to a legal attack by the US government. Companies outside of the USA would have no legal means of defending themselves either.
Last year the senate introduced the bill S-3804, COICA (Combating Online Infringement and Counterfeits Act). Fortunately for most Americans, it failed to pass thanks to Senator Ron Wyden (D-OR).
Back on May 12th of 2011, Senator Patrick Leahy (D-VT) introduced a newer version of this bill. S.968, PIPA (Protect Intellectual Property Act) which is aimed primarily at controlling Piracy and Rogue websites. The Senate’s Judiciary committee voted unanimously to pass it on May 26th.
Senator Ron Wyden managed to put a temporary hold on this act as well but the battle is far from over. He stated, “I understand and agree with the goal of the legislation…but I am not willing to muzzle speech and stifle innovation and economic growth to achieve this objective.” If a compromise isn’t reached the bill could go up for a full senate vote needing only a majority.
The DHS (Department of Homeland Security) would use this as the basis for their “Operation in Our Sites” which their Immigration and Customs Enforcement (ICE) division created just before the holiday shopping season in 2010.
Let’s not forget February 11th 2011 when ICE attempted to shut down mooo.com in a child porn raid. The service provider FreeDNS at afraid.org was hit with the Internet kill switch and essentially 84,000 legitimate sites were shut down in a case of mistaken identity.
Two of PIPA’s biggest supporters are the RIAA (Recording Industry Association of America) and the MPAA (Motion Picture Association of America). Former Senator Chris Dodd is also a strong supporter of this Hollywood-backed Internet Blacklist Legislation.
The Good
Unlike COICA, which targeted domain names in general, PIPA recognizes that legal action should be brought against the person responsible for the infringement before direct action is taken to shut down the website.
Officially, it also does not expand secondary liability. The Attorney General (or copyright holder) must send notice to those impacted, buying them time. Lastly it attempts to narrow the scope of those sites targeted through the phrasing, “dedicated to infringing material”.
The Bad
Unfortunately, The bill remains so vague about who is accountable that any site containing copy written material. Sites ranging from Amazon, E-bay and Facebook to Twitter and Youtube could be classified as illegal, and therefore shutdown permanently.
In theory, a fair trial must be held before action is taken to shut down a website. The Supreme Court has held that it’s unconstitutional to suppress speech without an “adversary proceeding”.
The loophole in the bill, however states that if the Attorney General “was not able to find” the owner of the sight or “no such person resides within the United States” then they can skip straight to seizing the website itself.
A judge can decide whether to block a domain after hearing from only the government. It would allow courts to order any Internet service to stop recognizing a site even on a temporary restraining order…issued the same day the complaint is filed. The U.S. Department of Justice would have far too much freedom.
A group of ninety law professors signed a letter opposing the Protect IP Act. They described it as “the equivalent of an Internet Death Penalty”. They also pointed out that blocking entire domains could “suppress vast amounts of protected speech containing no infringing content whatsoever”. The Supreme Court compared it to, “Burning the house to roast the pig.”
Overseas domain owners do not even have the right to participate in the legal process or appeal the decision after the fact. Those affected may, however file a completely separate lawsuit after the fact.
PIPA also encourages ad networks, payment processors, search engines, ISPs (Internet Service Providers), and Registrars to take “voluntary” action against sites that they consider infringing. If a site is cut off under an incorrect belief of infringement, there is nothing they can do about it. Basically, they’re screwed.
Even more frightening is the thought that the Attorney General can obtain an order saying search engines like Google can no longer link to certain sites. Talk about meddling with The First Amendment and freedom of speech.
Then there are the payment centers. Imagine having over a million small businesses suddenly unable to receive electronic credit card payments from organizations like Paypal. If you think the economy is struggling now, this would create a worldwide economic collapse sending every country into complete freefall.
If a search engine like Yahoo employs over 13,000 people, how many employees of other legitimate companies would suddenly find themselves unemployed due to government actions?
The worst fact about this law is that it grants private industry extraordinary powers to stifle new technologies and innovation because someone supposedly infringed on their copyrights. Simply put, it’s a form of Internet censorship.
In the twenties Thomas Edison tried to crush Nicoli Tesla’s discoveries (i.e. the light bulb). In the fifties Juan Trippe of Pan Am tried to crush Howard Hughes’ TWA. All through history people in Hollywood have tried to condemn the Record player, the Radio, the Television, the copy machine, and the VCR. Do we really need an all-new twenty-first century witch-hunt against technology?
By sanctioning government interference with the Domain Name System (DNS), such a precedent could be used as a justification for other countries to hinder freedom of expression online.
Many Internet engineers like Steve Crocker fear that this would open up Internet users to new potential security threats. By ordering legitimate DNS Providers like Comcast or AT&T to cease service, Many Sites would have to use offshore servers not subject to US law. The conflict of servers would create an Internet architectural nightmare. It would also make the net far less hospitable to malware.
For those innocent websites swept in as “collateral damage” this would be very dangerous. ISPs would gain far less data on cyber security threats and many could fall victim to con artists creating fake websites for banks, credit cards, social-networking sites, and more.
Google chairman Eric Schmidt in London said that even if both houses of congress and the President of the United States himself were to sign the bill, he would continue to fight it.
The God-awful
If you think the Senate’s bill S.968, the Protect IP Act is bad, wait until you get a load of the one just released by the House of Representatives last Wednesday, Oct 26 2011. Rep. Lamar Smith (R-TX) who leads the house Judiciary Committee introduced the HR.3261; SOPA (Stop Online Piracy Act) also dubbed the E-Parasite Act (Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation).
In PIPA, the primary targets were described as those sites that were considered to be “primarily designed or marketed for infringing uses”, In other words, those who committed acts of piracy or copyright infringement.
Despite the PIPA promise of not expanding secondary liability, SOPA broadens its scope to include those sites whose operators “avoid confirming a high probability.” Can we get any more vague?
These would include advertisers, credit-card companies, ISPs, search engines and registrars. Such parties would be legally required to stop providing ads or payment services to any site accused of being, “dedicated to the theft of U.S. property.” They would now face liability if they do not disconnect service from such websites, even if they were outside the United States. I don’t see how they could even enforce that.
PIPA encourages these parties to take “voluntary” action against those sites they considered to be infringing. SOPA makes it a required duty of these parties to police themselves and their users. This sounds strongly like the rules pushed upon the Hitler Youth Parties of 1938. If they new that their neighbors were harboring a Jewish family, they were required to report it to their superiors or suffer the consequences. The house version effectively demolishes the DMCA’s “Safe Harbor” act.
Under the SOPA, the Attorney General could order ISPs to block access to sites while leaving no provision for the accused to challenge the ruling before being terminated. The attorney general could then take legal action against anyone who provides products or services designed to bypass such blocks.
Unlike the Senate bill, PIPA, with SOPA, no court would need to be involved, unless the site owner filed a counter notice stating that it didn’t fit the bill’s definition of a “dedicated infringer.”
Markham Erickson, executive director of the NetCoalition tech advocacy group, stated, “This bill is a direct attack on technology, technology that allows for sharing of information…it covers anything that could foster infringement.”
This act would basically threaten the functioning, the freedom, and the economic potential of the Internet. It would short circuit the legal system, creating a fast track to shutting down websites. By creating conflicts between “DNS” servers, it would make you more vulnerable to hackers, identity theft, and cyberattacks.
By sanctioning government interference, it would censor the American Internet more strictly than even Russia or China’s limited access.
The Utterly Insane
Also placed on the floor May 11, 2011 by Senators Amy Klobuchar (D-MN), John Cornyn (R-TX), and Christopher Coons (D-DE) was S.978, The 10 Strike Bill. This one is as retarded as they get.
The bill states that if you engage in “public performance” 10 or more times over a 180 day period, of 1 or more copyrighted works, then you can potentially get fined and sent to prison for five years. Can we get any more Draconian, with the punishment for something that should be a God given right? It basically makes it a felony to stream or embed copyrighted material.
Technically a child could lip-sync a favorite song in a school play, the parent could videotape and post it, but once the eleventh person clicked the link to view it would become a crime, and the parent could go to prison while the child was taken away by the state. Do you want to be the one to explain that to your eight year old?
The definition of “Public Performances by Electronic Means” is dangerously broad. 10 “Public Performances”, could refer to 10 embeds, 10 streams, or 10 listens.
It is also considered a crime if the economic value of those 10 performances exceeds $2500 or if the owner demands over $5000 for performance rights.
One writer stated that the bill was so poorly written, that it could criminalize a night out singing Karaoke because it specifies “public performance” as an infringement. Does that mean that if Lady Gaga charges $200 per seat at a concert and you sing Pokerface for a drunken bunch of 13 or more friends at a party, you’ve just committed a felony?
It would also ruin shows like American Idol, America’s Got Talent, and X-factor where many dreamers go to try out while singing someone else’s songs. A lot more than ten people view those shows across the country.
Whenever I go to Bigfish Games or Macgames I often download the one-hour trial of a video game before deciding to buy it. Removing that option would lose them a lot of business.
I know that most all of my friends on Facebook have posted links to favorite songs and videos at one time or another. Most of them have a lot more than ten friends who have looked at these links.
In the 1950s, half of Hollywood were falsely accused of being communists and ordered to appear before a government committee for criminal offenses. Don’t let them start another witch-hunt over something so inoffensive. Our prisons are already overpopulated and the taxpayers have to pay for it.
For those who remember what its like to live in a truly free country, do not let them pass any of these three bills. I doubt you want your children to be blind, deaf, and dumb to what’s going on in the world today. The censorship of knowledge created by these bills would wipe out the first amendment and freedom of speech.
A hearing for these bills has been scheduled for November 16.
I might get in trouble later for quoting Albert Einstein, but here it goes. “A single drop of water helps to swell the ocean.” E-mail your local congressperson and let your opinion be heard before it’s too late.
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