November 16, 2011, 7:42 AM — As the U.S. House Judiciary Committee prepares for its hearing the morning on the Stop Online Piracy Act (SOPA), hundreds of web sites and activists are trying to bring attention to the bill with American Censorship Day.
Protestors of SOPA have a long uphill battle, if the testimony in today's committee meeting is any indication. The witness list for the hearing on SOPA, scheduled for this morning at 10 a.m. EST, seems decidedly comprised of witnesses in favor of the new bill. Of the witnesses, only Katherine Oyama, Policy Counsel from Google seems likely to testify against the bill.
SOPA (HR. 3261), along with its counterpart bill in the Senate, PROTECT IP (S. 968), are two pieces of legislation with essentially the same theme: give private copyright holders more tools to pull down pirated copy from the Internet. That sounds good on paper, but delving down into the details of each bill reveals some potentially serious problems for free and open source software (FLOSS) developers.
The SOPA bill, which is more stringent of the two bills being fast-tracked through Congress, would enable the US Attorney General to send court orders to DNS server operators ordering that DNS servers stop resolving the domain names of infringing sites to their matching IPs. Search engines would also be required to remove or block links to these sites.
Each bill also enables private corporations to cut off infringing websites at the financial knees: if a copyright holder finds content on a website that they believe infringes on their copyright, then they can go to any vendor who helps provide revenue to that site and request that the vendor cease working with the site. For instance, the request could go to any ad providers for the allegedly infringing site, and under the new law the ad provider would have five days to cut their ads from the site. Or, if the site uses credit cards or an online payment system like PayPal, the copyright holder can also get those organizations to stop supporting the website.
The problem protestors have with both of these bills are that all of these wheels will be set in motion by private corporations--movie studios and recording companies being at the top of that list--and there would be no requirement for proving anything in a court of law before the site is taken down. A copyright holder need only accuse a website of infringement, and the search engine, advertisement, and payment system would be cut off in five days. The DNS filtering would still need the involvement of the Department of Justice to get a court order, but again, there would be no need to prove anything to obtain such an order from a judge.
Infringing sites do have those same five days to file a counter-request--presumably to have time to remove the offending material from their site or protest the presence such offending material even being on their site.
As I pointed out Monday, additional provisions within SOPA would give the law the power to slap all of these punishments on software developers and distributors, too.
This would be a serious concern to the free and open source software community, which typically doesn't have the wherewithal to get into a legal fight with movie studios and industry organizations. Various examples of software that could be affected by a SOPA-based law: VPN, proxy, privacy, or anonymization software--including SSH; software that works with zone files for generic top-level domains; or client-side DNSSEC resolvers.
Basically, any software that a private copyright holder might suspect be used for the stealing or hosting of copyrighted material. And again, no legal proof required to take down a site first.
Supporters of the new law, and there are many, are very quick to dispel any notion that SOPA--or the Senate version of this bill--will be abused in this manner. Today's hearing is stacked with witnesses that will push the notion that all of these measures are intended to be used against foreign "rogue websites" that currently fall outside of the U.S.'s jurisdiction.
If you want an idea of just how one-sided the debate will be today, have a look at the Fact Sheet provided on the House of Representative's web page on SOPA (a page with the filename "issues_RogueWebsites.html").
The Fact Sheet has a less-biased title and filename, but the contents read like something created by the Motion Picture Association of America (MPAA) or the Recording Industry Association of America (RIAA) with the sole intent of allaying any and every fear raised about SOPA.
Instead of a balanced approach to addressing the pros and cons of the bill, the Fact Sheet derides each and every legitimate concern about the bill as a "myth."
Reading these myth-busting responses, it's almost possible to let yourself get soothed by the themes presented. It's only foreign websites conducting criminal activity that are being targeted, and infringing websites will have full and ample opportunity to fight false claims.
But the Fact Sheet neatly avoids mentioning that such battles will have to take place after the website is taken down, and that by filing a protest, any foreign website owner would have to agree to be within the jurisdiction of the U.S. civil courts, should the infringed copyright owner wish to sue them for additional violations later. For domestic sites, fighting a legal battle like this would take time and money that many site owners might not have.
The part of the Fact Sheet that will have high interest to FLOSS developers is a passage that addresses the "myth" that the bill will create conflicts between DNS servers.
"The bill also prohibits anti-circumvention technologies to protect consumers from unknowingly using foreign servers that could compromise their personal and financial information. Those who may choose to use such technologies to access servers in Russia or China do so knowing that their personal information may be compromised."
"Anti-circumvention technologies" will likely refer to those software applications listed above.
The black humor around this bill is that as a deterrent against actual criminal websites that host pirated material, it's useless. Yes, Pirate Bay (my bet for one of the first websites targeted as a "rogue" website) won't be reached by typing "http://piratebay.org" in the URL field of a browser, any more. But if people really want to download the latest episode of their favorite movie, how hard is will it be to type "http://18.104.22.168" instead?
Lawmakers seem intent on passing this bill, trusting that copyright holders will exercise restraint when enforcing their complaints on infringing material. Yet given the amount of lobbying used to get these bills fast-tracked through Congress--particularly a Congress unwilling to enact broader legislation to combat the nation's serious economic problems--"restraint" seems an odd term to apply.
Not to mention the major studio's past history of chasing down copyright infringers: a history where restraint has rarely applied.
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