Disclaimer: This post is a long one, but a very important one. If you become bored or are short on time, please read my summary instead.
Today, 7,000+ websites, including Google, Wikipedia, Reddit, Mozilla and Tucows are protesting as part of a raging debate that has been taking place across America over two new bills that are being considered by Congress and the Senate that would dramatically affect the inner-workings of the Internet. Whether or not the future of the Internet concerns you, its impact on the world over the past 2 decades cannot be denied. Therefore, this is bill is of a global consideration, and deserves more attention than it is currently getting in the main-stream. Though Internet-savvy users and the entire tech industry have become well-aware of the SOPA/PIPA debate, the average person is blissfully unaware of the bill or its potential implications on the future.
It is therefore my intent to try and explain the SOPA/PIPA bills both in technical terms, and in plain English, so that any reader of this blog post can consider themselves aware of the bill, it’s implications, and its potential dangers. I have tried my best to represent the facts as accurately as possible, however if you read something that is inaccurate, please contact me or leave a comment with supporting facts.
What are SOPA and PIPA?
SOPA, known also as H.R. 3261, is a bill that was introduced by Texas Representative Lamar Smith on October 26, 2011 to the United States House of Representatives. SOPA stands for the “Stop Online Piracy Act”, and is intended to give U.S. law enforcements and copyright holders much greater abilities to fight online piracy and copyright infringement. There have already been 3 hearings pertaining to this bill, on November 16, and December 15 & 16, 2011, and was planned to continue on January 24, 2012. However, due to serious concerns about the bill coming directly from the White House on January 15, 2012, the bill has been set for another mark-up session in February. (UPDATE: This bill has since been shelved indefinitely, due to protests against it.)
PIPA, known also as the PROTECT IP bill, was introduced by Senator Patrick Leahy even earlier on May 12, 2011, is considered the “sister bill” of SOPA. Its contents are in almost every way the same as the SOPA bill, except that it is being considered by the Senate instead of Congress. It remains scheduled for a vote on January 24, 2012. (UPDATE: This bill has also been shelved indefinitely, due to protests against it.)
Is piracy really that big of a problem?
Absolutely. Piracy is the theft of intellectual property, for example the redistributing of copied material that you do not own and are not giving due payments to its creators. Copyright laws of America, such as the DMCA law passed into law on October 28, 1998, do a reasonably good job at curtailing piracy in America. However, there are currently no laws to protect filmmakers and artists against Americans from downloading stolen intellectual property from oversea websites. Attempts at issuing Cease & Desist orders to websites in foreign countries have proved to be generally ineffective, as American laws can’t be imposed on those countries with loose copyright laws.
The worst offenders against content creators are those that make profit off of the stolen content. Pirating has been proving to be a very profitable business in foreign countries, by creating websites that attract users with the ability to watch free movies, and by gaining high income from the advertising on these sites. In many cases, the pirates even charge a nominal fee to their users for an “increased experience”, thereby gaining even more money from property that they have no ownership rights.
In real-world terms: Making profit by offering downloads or streams of intellectual property online is akin to robbing the house all the works of every artist, filmmaker and musician and re-selling them to people all over the world, making an indefinite amount of copies to continue doing so.
Piracy is theft, plain and simple, and any money created from the “business” of piracy is nothing more than illegal, dirty money. Bills are needed to curtail these thieves and to protect content creators.
If piracy is a bad thing, why oppose these bills?
The problem with the SOPA/PIPA bills are not the ends; it’s the means. The bills are so loosely-written that its language is too broad, its legal procedures too lenient, its scope too all-encompassing, its implementation too insecure, and its punishment for false accusations too gentle.
The conflict between the goals and means of these bills is the source of its controversy:
Those focusing exclusively on the goals, ie. the zero-tolerance method of eliminating piracy websites, make up the majority of the parties supporting it. This most notably includes the Motion Picture Association of America (MPAA), which includes most major movie companies (Disney, Sony, Paramount, NBCUniversal, Warner Bros, etc), major news networks (CNN, CBS, etc), and the Recording Industry Association of America (RIAA). Trademark companies, such as Nike, L’Oreal and the NBA also support the bill.
Meanwhile those focusing on the means, ie. the bill’s technical application and its affect on the structure and openness of the Internet, make up the major industries that oppose the bill. The biggest names include Google, Yahoo!, Facebook, Twitter, eBay, AOL, Mozilla, Reddit, Wikipedia, and almost every other technology-related company based online. Also, there is virtually no controversy about the matter within the global Internet community and Human Rights groups, with a recent Approve/Oppose poll taken showing that 98% of Internet users in America oppose the bills.
On January 14, some of the While House’s technical experts, cyber-security experts, and even intelligent property enforcement experts have also agreed that while the goal of the SOPA/PIPA bills are necessary, their means are not supported or condoned by the White House.
Companies that are caught in the middle, most notably operating system and video gaming companies, who are strong in their beliefs against piracy yet disagree with the means, mostly remain neutral. This includes Apple, Nintendo, and Electronic Arts.
What are the goals and means of this bill that are so controversial?
Goals: The goals of these bills are to allow the government and private parties to request the Attorney General to file court orders against any foreign website that they feel is stealing, copying, distributing or profiting from their intellectual property. Currently, under the Digital Millennium Copyright Act (DMCA), the law only allows these parties to order a particular element on a website to be removed. The SOPA/PIPA bills demand that the entire foreign site be removed from public access.
Means: The sites that are accused have their domain name listing removed from Internet service providers, funding and advertising companies no longer direct payment to these parties, and search engines must also remove them from their results.
What do those mean, in simpler terms?
In Internet terms: These bills provide the government and private parties (ie the entertainment industry) the right to block websites from US visitors, cut off all funding to them, and remove them from all search engines. This is essentially the equivalent of completely removing the offending company from existence.
In real-life terms: This would be like if the government and entertainment interest groups had the ability to shut down an entire chain of stores across America, cut off all revenue that they receive, and remove them from all phone books and other registries.
What’s the problem with removing infringing websites from the Internet?
The bill works on the “good faith” and “evidence” of the prosecutors; ie, there are no fair trials, investigations or other due processes into the matter of the offending site. If an Attorney General wants any given site taken down, he/she has the private right to do so simply by obtaining a court order from a judge, and sending a notice to the owner of the offending site, then to service providers, payment providers and search engines to blacklist it. After 5 days the site will almost cease to exist from the public eye.
Do the bills target American websites as well?
No, they do not target American website; it has been amended to only target foreign websites. Supporters of the bill have been very vocal about the fact that this bill is only intended to target foreign websites. Within the SOPA bill, a foreign website is defined as a website that does not have an American domain name (ie, a website that does not end in .com, .net, .org, etc). An example of a foreign website is a website in the UK which ends with “.co.uk”. There have been countless exaggerations online that this bill will somehow make it illegal for you to sing karaoke songs on YouTube, or that your website will be taken down because you have a t-shirt with a copyrighted character on it. Although this bill does have plenty of issues, this is not one of them, and it most certainly won’t target such videos, pictures or music on American websites.
So the bills won’t affect American website then?
Unfortunately, as currently written, they certainly would, and in dangerous ways. One of the requirements of the bills is that all domestic websites comply to all the restrictions of disabling the blacklisted sites from their own websites. For example, they must ensure that all their links do not connect to any infringing websites, nor contain any way to circumvent to the infringing websites. The definition of “circumvention” is so broadly defined that legal action could be taken against American websites on “circumvention” charges. These requirements mean that websites are completely responsible for the content that their users post.
In Internet terms: The technical and financial requirements to actually achieve this are both complex and extremely expensive. Big websites, such as YouTube, Twitter and Facebook, would be bombarded with extra costs. New, start-up companies may be completely unable to even start the business at all, due to the financial overhead and liability.
As an example, YouTube has 48 hours of video uploaded every minute. If every video were 5 minutes long, that would equate to 576 videos per minute. As they all contain descriptions, all of these would have to be checked for infringing content. Also, users can comment on videos, which may range from 5 to 200 comments per video. Those then have to be checked for infringing content. Let’s average the quantity at 50 comments per video. That would equate to 28,800 paragraphs to check every minute. Then, times 60 minutes per hour and 24 hours per day, there would be 41,472,000 posts to check per day. It would be simply impossible for YouTube to keep up with, much less any smaller website, which although it would have less content to filter, would still be relatively proportional to the website’s size.
In real-life terms: If you were taking a road-trip, this requirement would be akin to having police officers all along the highway every kilometer who are required by law to stop your car and check within it to make sure that you are not carrying any stolen goods. Not only would this be an awful experience for the driver, but the extra cots of having policemen every kilometer would be have definite financial burdens on the government. Now imagine that if you own a house or any other building, you are even required to hire policemen to check people coming into your drive-way or parking lot. That is what this part of the bill requires of all Americans.
So we can’t just apply real-life measures given to businesses to the Internet?
The Internet works on a very different model than real-life: while the “traditional” business is divided into suppliers and customers, the Internet is much greater than that: it is all about users. Websites may set up the technical capability to achieve something, such as posting videos (YouTube), knowledge (Wikipedia), or opinions (Twitter), however it is the users who are completely responsible for its content. Users are both the customers and suppliers in this model, and the website owners are the facilitators. This is why you can’t just impose a real-world model on the Internet and expect it to work. Website owners cannot always be held responsible for what their users with their websites any more than Kodak can be held accountable for illegal pictures taken with their cameras.
But the website must be considered “infringing” or “dedicated to theft” to be prosecuted, right?
Certainly. Of course, it is then important to have a look at the bill to find out what the definitions of an “infringing site” are, and in turn, what makes the website illegal. Section 103 of the SOPA bill defines them as sites “the operator of the site operates the site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation of section 105.” (Section 105 refers to the copyright infringement laws). Most of us would be able to agree that this certainly sounds as if it is directed to websites whose sole purpose is providing illegal copies of copyrighted material. The problem is, that nothing of this wording is specific enough. Why?
In Internet terms: Basically, any website that promotes user-generated content could easily be considered a website which promotes illegal activity. Imagine a foreign version of YouTube, for example: it allows its users to post videos. Most users use it to upload their own, personally-created videos. Many of these videos include copyrighted material in them, in the forms of background music, clips from a video to make a commentary about it, or an up-and-coming musician singing a karaoke song. Our entertainent-saturated culture makes personal recordings to almost unavoidably contain copyrighted material, and therefore, an Attorney General could easily make an argument that these sites or any such similar site is “promoting violations” and have the site killed.
The fact is, almost every website allows user-generated content to some degree. Even personal websites, such as this one, allows users to comment on the post. This means that almost every foreign website on the Internet could be construed to look like an illegal site, and subject to removal with only small traces of unavoidable copyright infringement. It may not seem fair, but the bill doesn’t have enough safety clauses in it to ensure “fair”.
In real-life terms: Let’s say that you ran a chain of 100 pubs all across a non-American country. At these pubs, you invite local musical artists to come and perform for the customers. They are welcome to come in and perform at any time, 24 hours a day, up to 1 hour. This means that on any given day, you have 2,400 musicians, each performing about 10 songs, or 24,000 songs per day. However, if any of these songs is copyrighted (which many probably would be), an Attorney General and a Judge could make a case that the website is “promoting” copyright infringement, and that one Attorney General could file a complaint that would shut down your entire chain of 100 pubs from Americans, completely strip them of all funding & advertising, and remove them from any index for reference, effectively killing the entire enterprise.
I wish this were an exaggeration, but in the online world, this is EXACTLY the implications of this bill. These kinds of usages are not the bill’s intent, but currently, there is nothing within the bill to protect it from being used this way. No wonder so many Internet users are upset.
Aren’t prosecuted sites given a fair trial and hearing? Don’t they have the chance to defend themselves?
No. They are not given a fair trial, or even any trial at all. It should have those things, but it has very little provisions for the defense of the accused. Section 102 states that the Attorney General sends a notice to the owner of the site, and makes a court order on “good faith” to have its resources cut off. If a judge agrees, the site is black-listed. That’s it. There is no trial or due process. It’s completely a “private right of action”. If the accused party takes the initiative, they can attempt to prove their innocence. However, there are 2 major problems with this: First, they must have the financial means of defending themselves, which a lot of small Internet businesses do not have. Second, even if they do manage to prove their innocence, the devastating effects of having been blocked publicly and financially for even one day could drive them into a bankrupt state.
This is a guilty-until-proven-innocent situation, which is completely anti-constitutional to the way law works in America.
Aren’t the prosecuting parties at least held accountable for making any false accusations?
Originally, no. There were no such provisions in the original bill, which actually granted immunity to all the parties involved from being counter-sued for mistakes or false accusations. However, an amendment proposed by Jason Chaffetz passed in congress, requiring the prosecution to cover all legal fees of all parties involved in a false accusation case. This puts more pressure on the prosecution not to abuse the rule, but honestly, it’s not nearly enough considering the damage they would have caused the accused in the first place.
Can these bills even be salvaged at all?
The main problem with these bills was that it was written solely for the benefit of the entertainment industry. The technology industry and human rights activists were not even invited to give their opinions nor input, much less write the bill. Although the opposition has helped to amend the bills slightly, it is still wildly out-of-balance in favor of giving too much control and power of censorship to private parties with the label “anti-piracy” and “protecting the citizens”. These bills need to be scrapped, and a new bill that is written with the interests of everyone is the only viable solution. The OPEN bill, which you can read about in the “alternatives to SOPA/PIPA” section, are one such possibility.
Can’t those drafting the bill understand these problems?
Based on quotes from proponents of the bill, it seems that its supporters have the misunderstanding that protesters are fighting for the “right” to pirate content. However, if the only implications of these bills were that they would eliminate piracy, then I would not have argued against them in the first place. Although I’m sure there are people who want to continue pirating, the truth is, this has less to do with a desire for piracy and more to do with the fear that legitimate websites and/or start-up companies would be shut down by mistake, and that websites that contain material that is not supportive of the government, law enforcement or corporations (for example) would be shut down deliberately using “copyright infringement” as their legal excuse. The possibility of this happening is very real and well-founded, as legitimate websites have been falsely sued or taken down on DMCA infringements in the past. The fact that these websites were taken down with due process means that the fear of being taken down without due process is a very legitimate fear indeed. However, it would seem that those spear-heading these bills have been shrugging off these concerns as non-sense, with Lamar Smith claiming that “if they read the bill they will be reassured“. Well, we have read the bill. And we are not reassured.
Are there better solutions to the online piracy issue?
There certainly many options that are much better than what has been proposed. SOPA and PIPA provide too much power to private parties. Proposed alternatives that do not censor nor stifle innovation have already been proposed, however the entertainment industry seems reluctant to accept them, perhaps believing that they are not forceful enough.
Here are 3 alternatives:
1. The OPEN bill, proposed by Senator Ron Wyden (Oregon) and Congressman Darrell Issa (California). This bill puts cases of foreign infringement on the shoulders of the International Trade Commission, who will seek to “follow the money” back to the actual source of the piracy, and try to cut off all funding to the offending parties. If piracy becomes an unstable and unprofitable business, it will decrease in prevalence. This solution is much better than SOPA because:
- It does not allow any censorship of legitimate businesses.
- It concentrates on disabling the offending parties from offering pirated goods rather than just blocking Americans from it
- It involves a full organization dedicated to the task rather than allowing private parties to blacklist the websites
- It more narrowly defines which websites are and are not “infringing sites”.
Though not without its flaws, the OPEN bill is a much much more reasonable bill, providing both aggressive action against pirates, and protecting the rights and interests of Internet users and businesses.
2. Using a licencing system:
- All websites that have less than a certain threshold of users (let’s say 1,000 per month) or less than a certain amount of income (let’s say $1,000 per month) cannot be considered “rogue” sites, and are immune from prosecution. This works for all sides: small, legitimate websites never need be afraid of being taken down while they remain small, and rogue sites are not getting enough traffic or users to be worth pursuing anyway. Some may be concerned that this would encourage rogue sites to spread out as a number of small sites rather than one big one. However, this is counter-productive to the pirate’s goals, and would just make users of the site more confused and less willing to visit.
- Once a website crosses over the threshold mentioned above, the owner of the website may apply for a “Privateer Licence”, which would be issued by the U.S. To apply, all the owner need do is submit their websites to a dedicated organization (established under law), which will add it to a queue to be investigated by said organization.
- If the website is deemed legitimate by this organization, they are given their “Privateer Licence”, which signifies that they are not an infringing site. From that point on, they have a much higher level of protection against any accusations against them. Some may be concerned that this would encourage sites to remain legitimate until they receive this licence, however if a legitimate website already has over a thousand users and thousands of dollars per month coming to it, they would have no incentive to turn it into a rogue site at all.
- Whenever a private party wishes to obtain a court order against a website, one of two things happens:
- If the website does not have a “Privateer Licence”, they are given 3 notifications: by e-mail, by postal mail and a phone call. The offending website then has 30 days to obtain a “Privateer Licence” by submitting their website to the committee. If they submit it and the committee finds it to be legitimate, then the website is given a licence and is not affected by accusations. However, if they do not submit the site (which they probably wouldn’t if it were an offending site), they are essentially admitting guilt, and further action will be taken against them. Committee involvement is not necessary in this case: an Attorney General and a Judge could settle the matter, as described in the original bill.
- If the website does have a “Privateer Licence”, then no notification is sent to the user right away. Instead, it is automatically resubmitted with priority to the committee, who will review it once again. As long as it has a licence, it cannot be shut down. If it is once again found to be legitimate, it is then given a “Double Privateer Licence”, and the prosecuting party is responsible for all fees that were involved. A website with a “Double Privateer Licence” is then protected from further accusations for one year, and the fees for any further actions against it will be doubled. However, if it is found to be an infringing site, it is stripped of its licence and again has 30 days to take down all infringing material and take the actions stated in 4-1.
3. Provide better services. This is the method most advocated by the tech industry, and for a good reason. The primary reason that the average user pirates movies is not because it is free, but because it is convenient. The user can simply type in the name of a movie or TV show that they are looking for, find results, and have them up and running on their computer in a matter of minutes, or at most an hour. And yet, even this is not a great service for users: they have to sift through dud results, endure pop-ups and ads, wait for the downloads, and sign-up for service or pay. However, with better “instant” services coming directly from the movie, music and game companies themselves, users can and will flock to these services and piracy will decline. This has already been seen with services such as Spoify, NetFlix and Steam (the links on those services are articles on their effectiveness). This is, by all accounts, the best solution, as it works in three ways:
- The companies who produce the content are directly connected to their customers.
- The service is much better, with technical support, personal ratings and reviews of content, easy-to-browse interfaces with no redundancy, and accounts so that it is easy to retrieve again at a later time.
- Users of the services can feel at moral ease knowing that they are supporting the content creators, and not pirates making illegal money off of them. Believe it or not, most people would rather pay content creators for their work than download it illegally. The reason they don’t, in many cases, is because there is no better service offered to them.
Piracy is a complicated issue, and should not be dealt with lightly, nor overly forcefully, but with a delicate balance. The input of all sides, from the content creators, to the tech providers, to the average user online, is necessary to come to a workable and meaningful solution. Any attempts to encourage dialogue and discussion between all sides is not just encouraged, but necessary, to continue to see a growing and thriving economy in which people pay for what they want, and companies provide what the people want. This can be done, but let’s take our time to get it right.