SOPA, PIPA, Anti-Piracy Legislation: Issue Backgrounder
The English-language Wikipedia is ‘dark’ today, in protest against a set of bills (nick-named SOPA in the House and PIPA in the Senate). These bills are intended to create new tools to address both the online commerce in copyright-infringing works and of counterfeit goods (i.e. both Copyright Act and Lanham Act violations). In particular, they aim to target the use of foreign-registered websites for “piracy,” although opponents point to several ways in which domestic websites can also be affected.
Along with Wikipedia, other websites (such as the “social news site” Reddit) are down for the day with a place-holder page urging visitors to protest the two bills. Google’s search site remains live today, but the usual “Google doodle” version of its logo is replaced by a blackout stamp “censoring” the logo. Normally clicking on a “Google doodle” performs a Google search for information about the subject or topic of the doodle. Today, it instead links to a Google-hosted advocacy page in opposition to SOPA and PIPA. Google has also taken the unusual step of slowing the Googlebot, so that sites that have gone dark today in protest of the two bills will see less negative impact on their search rankings.
While much of the technology industry is now engaging is such an unusual protest of the proposed legislation, the bills had already advanced fairly far in the legislative process with the backing of “content industry” associations (the MPAA, ASCAP, AAP, etc.), but also of a wide array of business and labor organizations motivated by the economic importance of U.S. intellectual property and a perceived need for stronger anti-piracy tools—particularly tools capable of reaching foreign sites.
As a result of the uproar in the Internet community, some news reports as of today indicate that DNS blocking may be removed from the bills.
(We provided a “quick guide” to SOPA in December, but given the rapid movement on this legislation, this additional “backgrounder” seems to be in order.)
Politics
While many contested issues have a clear partisan alignment, this graphic from ProPublica makes it very easy to visualize just how bipartisan both the support and the opposition to these bills is within Congress.
Bill Sources and Tracking
SOPA, 112 H.R.3261, the Stop Online Piracy Act is the House version of the legislation. As usual, Thomas is an excellent tool for tracking the legislation.
PIPA, 112 S. 968, the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011, is the Senate version of the legislation. The Senate legislation was reported out of the Committee on the Judiciary. S. Rep. No. 112-39 (2011), recommending passage.
For CWRU affiliates, Proquest Congressional (subscription electronic resource) is likely the best source to access the text of the several hearings related to the two bills in this Congress. Selecting the “Search by Number” tab and entering either the House or Senate bill number will display links to the hearings in each house of Congress, respectively.
S. 3804, the Combating Online Infringement and Counterfeits Act was the version of the legislation introduced in the previous (111th) Congress. It was also reported out of committee. S. Rep. No. 111-373.
A handful of Senate opponents of PIPA have introduced S. 2029, Online Protection and Enforcement of Digital Trade Act, to demonstrate an alternative approach.
Issue Analyses
Neutral
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Information on S. 968: PIPA, at OpenCongress.org
Includes a (very) short summary, lists supporting and opposing companies and organizations, and gathers links to news coverage. Note that this is neutral in content, but Opencongress.org, itself, is an opponent of SOPA/PIPA.
- Declan McCollagh, How SOPA Would Affect You: FAQ, CNET.com.
In Favor
- The Senate Committee Reports from the 111th and 112th Congress, described above
- Daniel Castro, PIPA/SOPA: Responding to Critics and Finding a Path Forward, Information Technology & Innovation Foundation, Dec. 5, 2011.
Devotes particular attention to countering arguments that PIPA/SOPA can break the Domain Name System.
- MPAA information page on Rogue Sites Legislation, includes a link to two short information sheets, but also to the Senate and House testimony (actually a draft of his prepared statements) of Floyd Abrams on behalf of the MPAA.
- Scott M. Fulton, III, Legal Analysis of SOPA/Protect-IP: No, It’s Not Censorship, ReadWrite Enterprise
- Legislative Solution, FightOnlineTheft.com (A site affiliated with the U.S. Chamber of Commerce, Global Intellectual Property Center.)
Includes several fact sheets and issue updates.
In Opposition
- Steve Crocker et al., Security and Other Technical Concerns Raised by the DNS
Filtering Requirements in the PROTECT IP Bill, DomainInCite.com (May 2011),
http://domainincite.com/docs/PROTECT-IP-Technical-Whitepaper-Final.pdf.Analysis by a team of DNS experts, security consultants and researchers, concluding that the bills if enacted would increase security risks and damage the Internet’s technical infrastructure.
- What’s Wrong With SOPA, Stanford Center for Internet and Society (YouTube video, Dec. 7, 2011).
Panelists: Mark Lemley, Josh Mendelsohn, David Ulevitch, Paul Vixie, Fred von Lohmann, Albert Wenger.
Moderator: Anthony Falzone.
Includes audience questions. - SOPA OnePager, American Association of Law Libraries: Government Relations
- PIPA, SOPA, and OPEN Act: Quick Reference Guide, ALA Washington Office.
- Lawrence H. Tribe, The ‘Stop Online Piracy Act’ (SOPA) Violates the First Amendment
- Marvin Ammori, Controversial Copyright Bills Would Violate First Amendment—Letters to Congress by Laurence Tribe and Me, Balkinization (blog).
Also direct link to Ammori’s letter.
- Allan A. Friedman, Cybersecurity in the Balance: Weighing the Risks of the PROTECT IP Act and the Stop Online Piracy Act, Brookings.edu.
Analyzes PIPA and SOPA in terms of their effect on efforts to enhance online security, concluding that the efforts in these bills to execute intellectual-property policy through tinkering with Internet architecture would create increased cybersecurity risks.
- An Open Letter From Internet Engineers to the U.S. Congress, EFF.org
Signed by 83 “prominent Internet inventors and engineers.” The list does include extremely prominent individuals, many of whom are among the original designers of internet protocols and standards.
- Open letter from 110 law professors. Dated July 5, 2011.
- Eric Goldman, Why I Oppose the Stop Online Piracy Act, Technology and Marketing Law Blog.
Scholarly (Law Journal) Articles
- Lemley, Mark A., Levine, David S. and Post, David G., Don’t Break the Internet (January 3, 2012). Stanford Law Review Online, Vol. 64, p. 34, December 2011. Available at SSRN: http://ssrn.com/abstract=1978989
- Ashley S. Pawlisz, The Bill of Unintended Consequences: The Combating Online Infringement and Counterfeit Act, DePaul J. Art Tech. & Intell. Prop. L. 283 (2010-2011). (student note)
Selected Other Items
- Matthew Lasar, ‘Least Restrictive means’? One Way that SOPA Could Die in Court, ArsTechnica.com.
Much of the most fervent opposition has been related to the provisions of the bills that would create a procedure to compell removal of targeted websites from the databases of DNS and search-engine operators within the United States. Opponents argue that this would be over-broad, and impose major compliance burdens on linking sites, search engines, and any websites hosting user-created content. Opponents have have also argued the likelihood of unintended technical consequences that would “break the Internet.”
It is at the very least interesting to note that this is a move that might seem to cut against the logic of U.S. efforts (via the structure of ICANN, discussed in a previous quick guide) to keep foreign governments or transnational organizations away from political influence on at least the global level of DNS management. (Though other nations can and do manipulate DNS within their territorial jurisdiction and for their domestic users.)
This post from the Atlantic Magazine’s AtlanticWire site, has Jonathan Zittrain expressing skepticism about OPEN, as well, and more broadly about Congresses ability to make useful law in this area.
Is CISPA the new SOPA?
http://www.chicagotribune.com/news/nationworld/la-pn-cispa-legislation-seen-by-many-as-sopa-20-20120409,0,6461074.story
The House is considering CISPA today. We haven’t added anything much about it in a new post, but it is not uninteresting on its own merits. Note that the coalition politics around CISPA are very different than those for SOPA/PIPA.