With sites like Wikipedia and Google holding a protest today, many people are likely hearing about proposed copyright legislation — the Stop Online Piracy Act in the House and the Protect IP Act in the Senate — for the first time today. So I figured I’d dispense with my usual writing — footnotes and all — to provide a brief introduction and explanation to the bills.

To call some of what is being said about these bills “hyperbole” would be an understatement. Then again, hyperbole is what the internet does best, second only to cat videos. If you’re looking for a somewhat more rational look at these bills before coming to an informed conclusion, read on.

What is the Problem?

Nearly everyone, even those who oppose the bills, agree that piracy is a problem. “Copyright industries” — everything from newspapers and periodicals, to motion pictures, recorded music, radio and television broadcasting, and computer software — are vital not only to our economy but our society as a whole. Online piracy has led to lost jobs and revenues in these industries.

Online piracy hurts creators. Many outside the creative industries are ambivalent to this. In large part, this is because the issue of online piracy has been framed as one affecting only record labels and movie studios — and rock stars and movie stars don’t evoke much sympathy. While everyone deserves protection of the laws, the ambivalence is understandable.

But the fact is that, while piracy certainly affects larger entities, it is the smaller and independent producers that bear the brunt of piracy’s harm. The James Camerons and Lady Gagas of the world will survive the transition to a digital age. Independent producers and the next generation of creators, however, are hurting.

And this should be a concern, because these creators so often make the most valuable contributions to our culture. They express views that are not always expressed by mainstream producers. They take creative and financial risks. They also, unfortunately, do not have the resources to respond to commercial pirates online.

For example, in a recent Huffington Post piece, Kathy Wolfe, who runs a company that distributes gay and lesbian films, notes how difficult it is to “compete with free.”

The artists I work with and the films I have been privileged to be associated with have changed countless lives. Without a secure, fair and functioning online market, these stories of diversity will cease to be told and this “Freedom of Speech” will be compromised. American companies that are in the business of creating and distributing content shouldn’t be sacrificed to protect large-scale pirate profiteers who knowingly and blatantly flout the law and common sense.

Attorney Dorrissa D. Griffin expressed similar sentiments in an article last October. Said Griffin, “Minority artists are impacted the most by this kind of theft because minority artists, writers and filmmakers often have little wealth (the wealth gap being as vast as it is) – except for their intellectual property. And once that gets stolen, nothing is left.”

In an article last spring, Jason Reitman (Up in the Air, Juno) worries about what the future holds for art and entertainment in general if piracy continues unchecked:

Reitman has a term for the type of motion picture facing extinction because of piracy. He calls them “tweeners”—the movies between the $10,000 YouTube home videos and the large-budget studio productions. Reitman sees the “tweener” as the lifeblood of the creative industry—producing movies as culturally significant and economically successful as Lost in Translation, American Beauty, and Pulp Fiction. It’s these movies, he believes which “push cinema forward,” producing the Sofia Coppolas and Quentin Tarantinos who then go on to make bigger budget and more lucrative movies.

Why is New Legislation Needed?

To understand SOPA and PROTECT IP, you have to first understand the law now. Under current law, anyone who copies, distributes, or publicly performs a work has infringed. A copyright owner can sue an infringer in federal court — which typically requires an attorney and thousands of dollars, with no guarantee of success. This makes sense if the infringer has deep pockets or is profiting off piracy. It makes less sense if the infringement is decentralized and dispersed, as often happens online.

Recognizing this, Congress passed the Digital Millennium Copyright Act in 1998. The DMCA protects sites that accept material uploaded by users — like YouTube and Facebook — from infringement liability if they comply with the law’s requirements. One of those requirements is taking down infringing material like a video or picture if the copyright owner sends a takedown notice to the service provider. Though users who upload material to such sites are still liable for copyright infringement, the notice-and-takedown regime has effectively shielded ordinary users from this liability as well. As the EFF has said:

As far as we know, no typical YouTube user has ever been sued by a major entertainment industry company for uploading a video. We have heard of a couple special cases, involving pre-release content leaked by industry insiders, but those aren’t typical YouTube users. And there have probably been a few lawsuits brought by aggressive individual copyright trolls. But no lawsuits against YouTubers by Hollywood studios or major record labels. That’s right — millions of videos have been posted to YouTube, hundreds of thousands taken down by major media companies, but those companies have not brought lawsuits against YouTube users.

There’s certainly plenty of room for improvement in the DMCA. But most will agree that the balance it struck has generally worked in the past decade, allowing new venues of expression to flourish — sites like YouTube, Facebook, and Wikipedia, for example — while creating some semblance of a functioning market that provides consumers with legal and innovative ways to access movies, music, and other creative works online — whether through Netflix, iTunes, Hulu, or Spotify.

So why is SOPA/PROTECT IP needed? It’s still trivially easy to set up a site that offers illegal content and profit from it from advertising and subscriptions or sales. And when such sites are operated overseas, they are effectively impossible for copyright holders to reach through DMCA takedowns or an ordinary copyright infringement lawsuit, yet such services are available to anyone in the US with an internet connection.

These sites profit off the talents of creative Americans, stall the development of legal services for consumers, and give nothing back.

What Would the Bills Do?

SOPA and PROTECT IP would give the Attorney General and copyright holders more effective remedies designed to cut off the money flowing to these types of sites.

The internet is filled with misinformation about both bills, much of it inadvertant, some of it deliberate (as with any legislation). A lot of this misinformation could be remedied simply by reading the bills (H.R. 3261 and S.968). Not all of it, of course. Legislation can be difficult for even lawyers and Congressmen to understand — and copyright law is an especially difficult subject to grasp.

So a brief word first about what these bills don’t do.

Much of the early criticism over these bills centered around provisions that would allow courts to order service providers to block access to websites. These provisions have since been removed and are not likely to come back. All that talk about “censorship” or “blacklists” or “breaking the internet” (all characterizations I absolutely disagree with) is moot.

These bills do not change what is or isn’t copyright infringement; instead, they limit the availability of these remedies to only a narrow subset of illegal behavior. Under SOPA, for example, the remedies are only available to a copyright holder if a site is “primarily designed” for offering goods or services that infringe copyrighted works, “for purposes of commercial advantage or private financial gain, and with respect to infringement of complete or substantially complete works.” (Emphasis added). A stray infringing clip on a blog or social networking site won’t cut it under this definition.

If a copyright owner wishes to take action against such a site, it must file a lawsuit in court, where the site owner is protected by the same due process safeguards as any civil defendant. The copyright owner may then move for court orders against any advertising or payment provider whose services are being used by the site to profit off piracy. If the court approves these orders, the providers must discontinue their services to that site.

It should be noted that both bills expressly limit the remedies available to copyright owners to these court orders — copyright owners can’t collect any monetary damages from sites under these bills.

In addition, advertising and payment providers are only required to take “technically feasible and reasonable measures” if served with a court order. Even then, they are only liable for court assessed penalties if they “knowingly and willingly” refuse to comply.

Finally, these remedies are not permanent. At any time after an order has been entered, a site owner can move to modify or vacate the owner if it disputes the original finding that it was primarily designed for infringement, if it has since changed its site so it no longer infringes, or even if “the interests of justice require” modification.

This “follow the money” approach would give copyright owners tools they don’t currently have to help reduce the harmful effects of online commercial piracy. It does so in a way that is fully compatible with our constitutional and civil rights and preserves the openness that has made the internet such a vital part of our everyday lives.

70 Comments

  1. Let me first say that I am grateful for your blog Terry. It is an articulate, rational, calm port in a sea of hysterical hyberbole regarding copyright.

    I am leaving my first comment here today because of a tweet complaining that do so requires the commenter to be pro-SOPA. I am not sure I trust the United States Congress enough to get it right on something as important as the rampant copyright infringement online.

  2. I read your posts with great interest, but it doesn’t seem like you respond much to the specific criticisms that sites like reddit have against SOPA. I think an article like http://blog.reddit.com/2012/01/technical-examination-of-sopa-and.html pretty neatly sums up the common reasons why I people dislike SOPA, I would love it if you responded to those specific criticisms, i.e. how is a site like reddit supposed to make sure no users post links to a site they’re not allowed to?

    • To understand this matter more fully, it is helpful to read all articles here associated with COICA, SOPA and PIPA. Criticisms by critics have been addressed in detail ad nauseum, but it needs to be understood that much of the discussion surrounding these bills is based upon “buzz words” and not rational and thoughtful analysis of what these bills actually say. I readily admit that as is the case with most multi-faceted legislation, it is not an easy task to read these bills for comprehension. It is only too clear, however, that the large majority of those decrying the bills have little, if any. interest in actually reading these bills “as a whole”. Instead, words and phrases are cherry-picked to try and support positions that are unsupportable given the bills’ provisions.

      In many regards, what is transpiring reminds me of the recent “Occupy Wall Street” activities. Most had not a clue what they were protesting, but protesting is always cool and a great opportunity to have the equivalent of a tailgate party.

      • I find it humorous that less than an hour after you posted this dismissive comment you posted another calling for “thoughtful discussion.” I guess maybe your definition of “fair and legitimate” comments doesn’t extend very far.

        The top poster has a good point. I thought this was a fine blog entry as a bare-bones introduction. Obviously its primary purpose is to educate. I think it’s fine, then, to bring up the fact that the post doesn’t address the common concerns brought up by people that really have read the bills and do legitimately disagree with their methods (pause for a moment and imagine that it is possible for people to do so in good faith). Sidestepping their concerns in an explanatory blogpost is not only a missed opportunity for thoughtful conversation, it also feels as disingenuous as attempts to speed these bills through congress without thoughtful conversation there, either.

        Yes, it is easier to talk past each other than with each other, but these are the times when reasonable people need to step up and take control of the conversation.

    • Reddit is a domestic site under the definitions in Section 101. Therefore, the provisions related to Attorney General actions under Section 102 don’t apply to it. Likewise, the provisions related to private parties under Section 103 similarly don’t apply because it is not designed or operated for the purpose of committing copyright infringement, and it has a substantial use other than being used to commit copyright infringement.

      Reddit repeatedly bleats the same mantra that it repeats again in that blog: “Complex technology legislation should not be drafted by someone who barely has a working knowledge of the internet.” I wish Reddit would follow its own advice when it comes to issues of law given its “colorful” characterizations of the language in the proposed bills.

      • Don’t forget to mention the immunity to overblocking that comes from the third party liability. If you’re going to talk about how Reddit is not being accurate, you should be able to discuss how user created content makes the site liable for damages in a one sided hearing.

    • Hi Marcus, thanks for the remarks. I didn’t go into a lot of detail in this particular post because I wanted to keep it generalized since a lot of people would be hearing about these bills for the first time today. But I’ll be glad to provide a little more detail here.

      The concerns raised by Reddit hinge first on Reddit being classified as an “internet search engine” under SOPA. As a caveat — these bills are still early in the legislative process. If they reached the point where they passed both houses, the language would still need to be reconciled before becoming finalized. The provisions relating to search engines are meant to apply to just that — search engines, and if you look at how the definitions have evolved from earlier versions, you’ll see that the language has been narrowed to ensure that that’s exactly what they apply to.

      Reddit argues that “Sites like reddit certainly fall within” SOPA’s definition. The bill defines a search engine as “a service made available via the Internet whose primary function is gathering and reporting, in response to a user query, indexed information or Web sites available else where on the Internet.”

      I disagree with Reddit’s reading of the language.

      You could plausibly read the language as including just about any website that has hyperlinks. But a court wouldn’t. Courts interpret statutes according to their plain meaning and avoid interpretations that would lead to absurd results. The fact that the bill uses the term “internet search engine” is the first clue that the definition is not meant to apply to each and every website online.

      Could the language be further tightened to eliminate any doubts? Perhaps. I’m inclined to think the way PROTECT IP incorporates its definition by pointing to an already-existing definition is the preferable choice — it’s been a part of the law for over a decade, so the definition carries more certainty for service providers and judges.

      But let’s assume for the sake of argument that Reddit would be considered an internet search engine under the bill’s language. Reddit is correct when they note that the bill would not change their general obligations in operating the site unless they were served with a court order pertaining to a specific site.

      If that occurs, it would only need to take “technically feasible and commercially reasonable measures” to remove the link, and even then, the court order “should be narrowly tailored by the court, consistent with the First Amendment to the Constitution, to be the least restrictive means to effectively achieve the goals of this title.”

      Reddit says that the “no duty to monitor” doesn’t apply to search engines under SOPA, but I’m not sure where that comes from. The “no duty to monitor” clause applies to all service providers that are served with court orders, including internet search engines.

      Finally, Reddit notes that the court orders place “a measurable burden upon the site’s technical infrastructure.”

      The bill establishes an affirmative defense to a court order if a service provider can show that it “does not have the technical means to comply with this subsection without incurring an unreasonable economic burden.” These provisions are not designed to bankrupt service providers.

  3. Shame on you and your support of this dangerous, over-reaching bill. There is much in your post that’s disingenuous, and I have a hard time pretending you’re unaware of that.

  4. SOPA is quickly becoming demise of the nefarious antipiracy companies and others that steal from the public domain and harms our education system. Please stay on your path as it will make your industry obsolete within few years.

    It’ll be the first steps towards a society where piracy is widespread and secured as a basic human right, written into law.

  5. Mr. Hart,

    Your article, much to my disappointment (and certainly your’s as well) seems to be attracting moths to a flame. This is not necessarily a bad thing when a fair and legitimate point related to the provisions of the legislation is raised. Unfortunately, this does not appear to be the case.

    I hope that comments such as some of the above do not begin to overwhelm a thoughtful discussion of your article.

  6. What bothers me so much about it is the dismissive and sometimes arrogant tone set by the proponents of it. I once asked a very well respected IP advocate about something that was troubling to me and got a boatload of vitriol back. I was ‘stupid’ and ‘misinformed’ and a knuckle dragging IP hater bent on stealing other people’s work.

    No one fights harder against IP than I do. I hate CC, and would consider capitol punishment something to consider for IP violators. At least consider it…

    But, just like supporters of a certain Texas Presidential hopeful, the supporters all have a ‘with me or die’ mentality. I hate it when people pre-suppose that because I disagree, I must have not read it. Otherwise, how could I disagree with the great minds of our day.

    Putting the DOJ, thousands of attorneys, and the entertainment industry in control of things like DNS just makes me quake in hilarious terror.

    It just seemed to me to be too much, too fast, and with too many ‘pushers’ involved. Color me a dimwittedasswipe if you will, but the over reach here was monstrous. And, in the end we would end up with another “War on ____”.

    War on Poverty spends trillions and there it is.
    War on Drugs… sorry, laughing too hard to say much there…
    War on Piracy… the same players will get richer and richer and the lawyers will cash in and the entertainment thugocracy will run rampant…

    No. Sir.

    I am not having any of that.

    Are there ways to stop it? Hell yeah.

    Just not this way.

    • If you had actually read the bill (or the blog post for that matter…) , you would know that the DNS portion was taken out of the bill.

      Furthermore, If the government wanted to use this bill for snooping on or ‘censoring’ the public (which there’s absolutely no founding for such an argument, within the actual language of the bill)… they wouldn’t use this weak bill… they’d use something much stronger, say… the Patriot Act… or countless other provisions already on the books.

      This Bill is not the bogeyman it has been made out to be. (mostly from Multinational Corporate conglomerates that currently enjoy huge indirect and direct profits from piracy [cough* Google*cough], that fund the dissent and the many “public” organizations that are against this bill [*cough*EFF*cough*Public Knowledge*cough*get millions of dollars from Google*cough*paid from the money they steal from creators*cough]

      • I like how the pirate douchebag from Reddit called stopping the bills a “fight to save democracy.”

        Wow. These people are truly sick sociopaths.

          • Well, might as well use this one since it came off wrong. Sopa is dead. The controversial bill that united the internet against the old content industry has been destroyed. But we’ll have to see if the lessons learned from this truly show if the movie and music industry learned their lesson.

          • The “old” content industry whose content people still crave so much that they steal it.

            The SOPA bill might be dead, but your BS has pissed off creators like never before.

            We will get legislation. And soon.

          • Kent, the fact that the MPAA is pissed that the entire US of A revolted against their attempt to put through a censorship fills me with so much glee, I have to thank you for that.

            I also have to thank you for showing that you can’t even think that people found new content that they want despite the movie and music piracy that occurs on Youtube, Megaupload, and everywhere else on the net. So all of the businesses that have sprung up despite the Big Three getting smaller are beyond your notice.

            So thanks for the huge compliment that I helped expose the MPAA as a bottom feeding organization that can’t make a good product. You didn’t have to compliment me so well.

          • Jay,

            Are you 16 years old?

          • Nope. Just taking Kent’s statement as a compliment. :)

  7. Think you need a little more information regarding these bills and the harm they would cause.

    http://www.huffingtonpost.com/michael-ham/sopa-congress_b_1195598.html

    • The Huffington Post is an American website and is covered under the safe harbor provision of the DMCA. The author is incorrect that HuffPo or any other American site would be affected by SOPA.

      SOPA is about foreign sites; the DMCA has not been repealed, and all the protections American websites enjoy from it remain.

      The disinformation I’m seeing on the web today about this bill is shocking.

  8. I have a question for Terry, the author of this article, if he reads this.

    You have stated:

    “Much of the early criticism over these bills centered around provisions that would allow courts to order service providers to block access to websites. These provisions have since been removed and are not likely to come back. All that talk about “censorship” or “blacklists” or “breaking the internet” (all characterizations I absolutely disagree with) is moot.”

    But then I looked at the bill itself, which I got to from the link in the same article:

    http://judiciary.house.gov/hearings/pdf/HR%203261%20Managers%20Amendment.pdf

    and it says (on page 15) ( btw. “service provider” means an operator of a nonauthoritative domain name server). After a court order is given then:

    A service provider
    shall take such measures as it determines to be the least burdensome, technically fea- sible, and reasonable means designed to prevent access by its subscribers located within the United States to the foreign in- fringing site that is subject to the order. Such actions shall be taken as expedi- tiously as possible.,

    Is this an old version of the bill, or am I missing something here? this seems to be saying that service providers will block access.

    Thanks, excellent article by the way, I have posted it to my facebook, I just want to be prepared to answer inevitable questions.

  9. “Then again, hyperbole is what the internet does best, second only to cat videos.”

    I see you have about as respect for the Internet as SOPA/PIPA’s backers.

    It’s interesting that you mention that the DNS-breaking provisions have been removed… yet neglect to mention that this was a very recent change – occurring only after significant pressure from the Internet community’s “hyperbole”. Had we listened to you, the people you’re shilling for would have successfully snuck those provisions in.

    That they even tried is very near treasonous, in my opinion, and I’m hardly going to trust SOPA/PIPA’s backers to do anything in the interests of the Internet-using public.

    I understand (and empathize with) the problem that these bills claim to solve. I sell software that I create, and have to deal with the effects of piracy myself. However, the broader issue of blatant government overreach on the behalf of a handful of moneyed interests (particularly those as loathsome as the RIAA and its ilk) trumps that.

  10. I’ve been thinking about the internet blackout, and it’s occurred to me that that the various groups involved are targeting the wrong people.

    We all know that the real forces behind bills like SOPA and PIPA are the content-creators. Wouldn’t it be better, and more effective, to target them directly.

    So, here’s a suggestion: the various sites upset about SOPA and PIPA could boycott the content creators. Google could refuse to ran any ads on sites featuring new movies, music, books, etc. Wikipedia could take down all the articles they have devoted to works of fiction and the words represented in them. Storage sites like Megaupload, Filesonic, etc. could all refuse to store any files identified as containing films, books, music, television shows, and so on.

    Deprive the content creators of all those services. That’ll show them who’s boss.

  11. Pieter Hulshoff

    Much of the early criticism over these bills centered around provisions that would allow courts to order service providers to block access to websites. These provisions have since been removed and are not likely to come back.

    Some proponents of SOPA may feel this way, but certainly not all. To some, it’s still on the table, and so the tech community must make very clear as to why DNS cannot be used this way.

    These bills do not change what is or isn’t copyright infringement; instead, they limit the availability of these remedies to only a narrow subset of illegal behavior.

    That may be true for SOPA, but it’s certainly not true for PIPA. PIPA is not limited to sites engaged in infringement, but also those sites that enable or facilitate infringement. That covers practically every site that allows user input.

    If a copyright owner wishes to take action against such a site, it must file a lawsuit in court, where the site owner is protected by the same due process safeguards as any civil defendant.

    No, it’s not. Such actions can be taken by the AG via an ex-parte hearing. That simply does not qualify as due process. It also allows for voluntary action by e.g. search engines and payment providers, and offers them full immunity if they do so.

    Finally, these remedies are not permanent. At any time after an order has been entered, a site owner can move to modify or vacate the owner if it disputes the original finding that it was primarily designed for infringement, if it has since changed its site so it no longer infringes, or even if “the interests of justice require” modification.

    Certainly, but how many sites can survive for that time without any payments coming in? These laws have the potential for perfectly legal sites to be financially ruined by an ex-parte hearing or even a voluntary action, and should they finally manage to get the injunction overturned (by financially surviving long enough) they have no way to claim their damages.

    I’m sorry, but IMHO there’s quite a lot wrong with SOPA and PIPA aside from a few pesky DNS parts that may or may not be removed.

    • Some proponents of SOPA may feel this way, but certainly not all. To some, it’s still on the table, and so the tech community must make very clear as to why DNS cannot be used this way.

      Personally, I hope DNS blocking is still on the table. The explanations I’ve seen for how it’ll “break the internet” have only convinced me that it’s a policy argument dressed up as a technical issue. Courts are already ordering changes to DNS. Two examples: http://www.rojadirecta.org/ and http://www.wholesaler007.com/ Yet the internet is not broken. Can you explain to me exactly why it’s such a bad thing to prevent a domain name from resolving to a site dedicated to infringement?

      That may be true for SOPA, but it’s certainly not true for PIPA. PIPA is not limited to sites engaged in infringement, but also those sites that enable or facilitate infringement. That covers practically every site that allows user input.

      It applies to sites PRIMARILY designed, operated, or marketed for engaging in, enabling, or facilitating infringement. I don’t see how that includes “practically every site that allows user input.” Here’s the text:

      “(7) the term ‘‘Internet site dedicated to infringing activities’’ means an Internet site that— (A) has no significant use other than engaging in, enabling, or facilitating [infringement] . . . (B) is designed, operated, or marketed by its operator or persons operating in concert with the operator, and facts or circumstances suggest is used, primarily as a means for engaging in, enabling, or facilitating [infringement]”

      Source: http://leahy.senate.gov/imo/media/doc/BillText-PROTECTIPAct.pdf

      No, it’s not. Such actions can be taken by the AG via an ex-parte hearing. That simply does not qualify as due process. It also allows for voluntary action by e.g. search engines and payment providers, and offers them full immunity if they do so.

      Both bills only allow for the Attorney General to bring an action in federal court, and the Federal Rules of Civil Procedure govern the entire action. Yes, the court could grant a TRO, which would by definition be ex parte, but again, that would be governed by the Federal Rules. To say this violates due process is to say that the Federal Rules themselves violate due process (and they don’t).

      See SOPA, Section 102. http://judiciary.house.gov/hearings/pdf/HR%203261%20Managers%20Amendment.pdf

      See PROTECT IP, Section 2. http://leahy.senate.gov/imo/media/doc/BillText-PROTECTIPAct.pdf

      As far as immunity for voluntary actions taken by providers goes, so what? If Visa or Google have a good faith reason to think their service is being used for illegal purposes, they can already cut off a rogue user and face no liability. It’s silly to think that Visa or Google should have to wait for a court order before cutting off a customer who is abusing their service.

      Certainly, but how many sites can survive for that time without any payments coming in? These laws have the potential for perfectly legal sites to be financially ruined by an ex-parte hearing or even a voluntary action, and should they finally manage to get the injunction overturned (by financially surviving long enough) they have no way to claim their damages.

      I just don’t see this parade of horribles happening. Nor do I understand the obsession opponents have about the possibility of one legitimate site being adversely affected, when no consideration is given to the incredible depth of the rogue site problem. It seems to me that thousands and thousands of rogue sites would be targeted exactly as the law intends, and probably a few arguably legitimate sites would get swept up. No law enforcement mechanism is perfect, but again, this one is governed by the Federal Rules and all the protections they provide. Any sites that are incorrectly targeted would have remedies available.

      I think it really boils down to opponents just not wanting ANYTHING to be done about rogue sites. Simple as that.

      • Pieter Hulshoff

        Can you explain to me exactly why it’s such a bad thing to prevent a domain name from resolving to a site dedicated to infringement?

        I can at least try. :)

        The main technological problem comes from a weakness in the DNS protocol to man-in-the-middle attacks, where cyber terrorists can pretend to be a DNS (root) server, and inject false information into the DNS. This may result in people thinking they’re connected to e.g. their bank while in fact being connected to a phishing site.

        In order to combat this, DNSSEC was developed. It’s a (relatively new) internet standard that defines the signing of DNS entries to allow verification of their authenticity. Obviously, only root servers can do this signing.

        DNS blockage as defined by SOPA would not work together with DNSSEC, because it would be done by e.g. ISPs, who don’t have the ability to sign changed entries. As such, those messages cannot be saved, and therefore will be considered a network failure or possible attack by the client. The client will respond by disregarding that DNS server, and find one that is secure (so does not contain the block). This will result in either using a DNS server outside the US, or result in a DNS error on the client.

        The alternative would be to change the entry in the root server, but that would isolate the US DNS from the rest of the world. Fracturing the internet DNS in such a way is considered a nightmare by any telecom operator.

        It applies to sites PRIMARILY designed, operated, or marketed for engaging in, enabling, or facilitating infringement. I don’t see how that includes “practically every site that allows user input.”

        Practically the only thing a site like YouTube is designed for is to enable infringement. It may not be the purpose of operation or marketing, but it’s certainly designed as such. Just ask Viacom if you think that idea’s far fetched. The same goes for any other site that allows user input. Certainly, it will come down to the judge that presides over the case, but it certainly creates a huge potential risk for new businesses online, which is why the anti-SOPA group also contains a lot of VCs.

        Both bills only allow for the Attorney General to bring an action in federal court, and the Federal Rules of Civil Procedure govern the entire action. Yes, the court could grant a TRO, which would by definition be ex parte, but again, that would be governed by the Federal Rules. To say this violates due process is to say that the Federal Rules themselves violate due process (and they don’t).

        An ex-parte hearing that allows for these kinds of remedies certainly would violate due process. If you think these laws will not be abused, please have a look at the case of dajaz1.

        It’s silly to think that Visa or Google should have to wait for a court order before cutting off a customer who is abusing their service.

        Considering the (near?) monopoly position those companies are in, I’m fairly sure that such a thing under any other circumstance would be cause for an anti-trust violation. I’m quite sure the European courts would view it that way.

        I just don’t see this parade of horribles happening.

        Hmm, you’ve read the dajaz1 case then? It’s far from the only abuse under similar laws for domestic sites.

        I think it really boils down to opponents just not wanting ANYTHING to be done about rogue sites. Simple as that.

        I strongly disagree here. We just want to make sure that legitimate businesses won’t suffer at another failed attempt at reducing infringement. I’ll get back to that in another comment down the chain.

        • I can at least try. :)

          The main technological problem comes from a weakness in the DNS protocol to man-in-the-middle attacks, where cyber terrorists can pretend to be a DNS (root) server, and inject false information into the DNS. This may result in people thinking they’re connected to e.g. their bank while in fact being connected to a phishing site.

          In order to combat this, DNSSEC was developed. It’s a (relatively new) internet standard that defines the signing of DNS entries to allow verification of their authenticity. Obviously, only root servers can do this signing.

          DNS blockage as defined by SOPA would not work together with DNSSEC, because it would be done by e.g. ISPs, who don’t have the ability to sign changed entries. As such, those messages cannot be saved, and therefore will be considered a network failure or possible attack by the client. The client will respond by disregarding that DNS server, and find one that is secure (so does not contain the block). This will result in either using a DNS server outside the US, or result in a DNS error on the client.

          The alternative would be to change the entry in the root server, but that would isolate the US DNS from the rest of the world. Fracturing the internet DNS in such a way is considered a nightmare by any telecom operator.

          That’s basically my understanding as well. The fact is that we’re not using DNSSEC right now, so the “broken” internet that people are worried about is the very internet we’re using right now. All you’re basically saying is that people who try to access these websites dedicated to infringement won’t get the benefit of DNSSEC. I don’t see how that’s really a problem, especially when you consider all the viruses the infringers already subject each other too. I don’t see how a hypothetical man-in-the-middle attack makes things particularly less safe for them than they are already or than they would be even if they get to use DNSSEC.

          Practically the only thing a site like YouTube is designed for is to enable infringement. It may not be the purpose of operation or marketing, but it’s certainly designed as such. Just ask Viacom if you think that idea’s far fetched. The same goes for any other site that allows user input. Certainly, it will come down to the judge that presides over the case, but it certainly creates a huge potential risk for new businesses online, which is why the anti-SOPA group also contains a lot of VCs.

          YouTube has a robust content-ID system and is very proactive in combating infringement. I don’t think a court would agree that YouTube meets the definition in the bills. If the bills cause VCs to think twice about investing in a website that might be considered to be dedicated to infringement, I see that as a positive. Obviously innovation will still occur online, and the sites that carefully take the law into account will be the ones that thrive.

          An ex-parte hearing that allows for these kinds of remedies certainly would violate due process. If you think these laws will not be abused, please have a look at the case of dajaz1.

          Had dajaz1.com been taken down under SOPA or PROTECT IP, they would have gotten a lot more process than they got under Operation in Our Sites. TROs can only be issued for 14 days, with the possibility of one 14 day extension for good cause. See FRCP 65: http://www.law.cornell.edu/rules/frcp/rule_65

          I don’t think what happened to dajaz1.com was a due process violation. I found a case on Westlaw where someone had their property seized pursuant to a forfeiture action, and the government kept pushing back the hearing because there was an ongoing criminal investigation. After 10-11 months the guy finally got his hearing. He sued saying it violated due process, and he lost in the district court and on appeal with that argument. As long as there’s the ongoing investigation, the court of appeals said, it doesn’t violate due process to postpone the hearing.

          That said, I do think that the dajaz1.com situation was likely a First Amendment violation since presumptively protected speech was blocked without a prompt, subsequent hearing. I hope they file suit because I’d love to see what the court says. However I don’t necessarily think that dajaz1.com did no wrong, despite the fact that the DOJ returned their domain name. We don’t really have all the facts there, and I would not be surprised to learn that they in fact were committing criminal infringement.

          One thing to keep in mind is that the SOPA/PROTECT IP process has significantly more safeguards (notice and hearing) than Operation in Our Sites. So they aren’t exactly comparable.

          Considering the (near?) monopoly position those companies are in, I’m fairly sure that such a thing under any other circumstance would be cause for an anti-trust violation. I’m quite sure the European courts would view it that way.

          I know my cable company can unilaterally cut off people because of a single copyright accusation by a rights holder. I suspect the terms of service contract that all users sign says that the provider can cut off service with good faith evidence of misuse.

          Hmm, you’ve read the dajaz1 case then? It’s far from the only abuse under similar laws for domestic sites.

          As I mentioned just above, I do think Operation in Our Sites suffers from a lack of post-seizure process, and I’m not so sure that dajaz1.com did no wrong.

          I strongly disagree here. We just want to make sure that legitimate businesses won’t suffer at another failed attempt at reducing infringement. I’ll get back to that in another comment down the chain.

          We’ll see. Opponents of SOPA/PROTECT IP acknowledge there is a problem that needs to be addressed. I seriously have doubts that opponents will agree to any effective remedies, though.

          • That’s basically my understanding as well. The fact is that we’re not using DNSSEC right now, so the “broken” internet that people are worried about is the very internet we’re using right now. All you’re basically saying is that people who try to access these websites dedicated to infringement won’t get the benefit of DNSSEC. I don’t see how that’s really a problem, especially when you consider all the viruses the infringers already subject each other too. I don’t see how a hypothetical man-in-the-middle attack makes things particularly less safe for them than they are already or than they would be even if they get to use DNSSEC.

            Sorry, but your understanding is lacking. Aside from DNSSEC already having been installed in large parts of the network, just not fully used yet, a DNSSEC failure goes beyond just the infringing site. A DNSSEC failure, which cannot be distinguished from any other network failure, results in the ignoring of that DNS server. In the end, the client will either (automatically) select a DNS server outside the US, or indicate that it has no valid secure DNS servers available anymore, meaning it won’t get any DNS answers for any DNS requests. Usually the user will then decide to use a secure DNS outside the US in stead.

            The alternative solution, to use the DNS root servers would result in a fracturing of the global DNS system, something telecom operators certainly consider a “breaking of the internet”.

            YouTube has a robust content-ID system and is very proactive in combating infringement. I don’t think a court would agree that YouTube meets the definition in the bills. If the bills cause VCs to think twice about investing in a website that might be considered to be dedicated to infringement, I see that as a positive. Obviously innovation will still occur online, and the sites that carefully take the law into account will be the ones that thrive.

            While I agree that YouTube has a very robust content-ID system these days, they only recently gained both the knowledge and the finances to do so. Perhaps under SOPA they are now legal, but they never would have existed had SOPA (or a similar law for domestic sites, since YouTube is outside the SOPA scope) been in force 8 years ago. It certainly means that no new YouTube like site will ever come into existence, something I’m sure Google might actually enjoy.

            We’ll see. Opponents of SOPA/PROTECT IP acknowledge there is a problem that needs to be addressed. I seriously have doubts that opponents will agree to any effective remedies, though.

            We will see indeed. :)

  12. Pieter Hulshoff

    While I’m here: Why can’t any SOPA proponent give me a list of 5 websites SOPA will stop?

    • Really? Like that’s even a challenge.

      demonoid.me
      kat.ph
      torrentz.eu
      simdisk.co.kr
      letmewatchthis.ch

      And there are thousands and thousands more.

      • HA! The domain seizure won’t work because it’s not a .com or .org. Then there’s the DNS blocking which is still in the bill, just removed for the time being. Meanwhile, the fact is that these sites have been around for years. Are you saying that because people can watch the content for free, they’re causing the industry billions of dollars, even though the methodology to calculate damages of the movie industry, is flawed? It’s almost like saying that there is a 1:1 ratio of damages which is already a beyond flawed notion.

        • You are just all over the place, Jay. They could potentially be blocked at the DNS level, and companies like Visa or PayPal could be ordered to not do business with them. Also, Google and other search engines could be ordered to remove links to those sites. Even though the sites are foreign, there are domestic actors those sites rely on that could be subject to court orders. That’s exactly what SOPA and PROTECT IP have in mind.

          • No, I’m not “all over the place”. That’s you trying to be misleading on the points.

            1) As I mentioned, the DNS was removed, but it’s still in the bill to be put in at a later date. However SOPA has officially become toxic so that’s beside the point.

            2) American processors forced to go away? No problem. In a few years, the system is replaced and America is no longer the viable industry that it is. Also, Visa AND Mastercard have had very valid complaints about the 5 day turn around. Might want to look into that.

            3) The user created content sites will be affected based on the definition of a US Directed site as well as the definition of “enabling infringement” that’s in the bill in a few places.

            4)You failed to mention how the methodology of those tracking these “losses” is beyond flawed. And yet, the movie and music industry did quite well, or will you ignore all evidence of their prosperity?

            5) Relying on other actors to police what you should be doing (as the DMCA currently allows) is beyond a flawed notion, don’t you think?

    • Just to give you an idea of the scope of the problem, see a recent list of domain names that UGG Boots went after: http://gbclaw.net/files/CaseNo-11-cv-7970/Amended%20Schedule%20A.PDF

      I believe that’s about 400 domain names being used to infringe on UGG’s marks. And that’s just one trademark. Now, those websites are .com, .net, .info, .org, etc, and therefore not subject to SOPA (if I understand it correctly), but it’s not hard to imagine that once the domestic domain names like those get taken down, the site operators will just set up shop again using foreign domains.

      The point I’m trying to show you is that the rogue sites problem is very real and very large.

      • Actually, you’re the first SOPA proponent I meet that actually understands that SOPA does not target .com, .net, .info, .org, etc. sites. I never even heard of the other sites you mentioned, so if all of the big rogue sites don’t even fall within SOPA, why do we need SOPA so badly?

        • Actually, you’re the first SOPA proponent I meet that actually understands that SOPA does not target .com, .net, .info, .org, etc. sites. I never even heard of the other sites you mentioned, so if all of the big rogue sites don’t even fall within SOPA, why do we need SOPA so badly?

          So rights holders and the AG can get court orders to cut off funding and advertising to foreign rogue sites. And delisting them from search engines cuts off their ability to get traffic. Just because you haven’t heard of these sites doesn’t mean they’re not a problem.

          What’s interesting about that UGG case is that the court ordered a bunch of remedies that look exactly like the remedies that SOPA and PROTECT IP would provide for: http://gbclaw.net/files/CaseNo-11-cv-7970/Deckers%20Outdoor%20-%20Preliminary%20Injunction.PDF

          Even without SOPA and PROTECT IP, courts are able to order those things based on the court’s inherent equitable power. What SOPA and PROTECT IP do is codify those remedies so plaintiffs can simply point to the statute and say “I want that” rather than have to convince a judge that those remedies are available via the court’s nebulous inherent power.

          SOPA and PROTECT IP simply streamline the process for all involved.

          • Pieter Hulshoff

            The big problem with laws like SOPA and PIPA is that their impact on infringement will be almost 0, since they leave holes big enough to drive a freight train through, but are so broadly worded that they have the potential to cause huge damage to legitimate businesses. Did you check out the link I posted below?

          • The big problem with laws like SOPA and PIPA is that their impact on infringement will be almost 0, since they leave holes big enough to drive a freight train through, but are so broadly worded that they have the potential to cause huge damage to legitimate businesses. Did you check out the link I posted below?

            I did, and I disagree with much of it. It seems strange to me how opponents claim that the bills will have no effect on illegitimate websites while at the same time they’ll be devastating for legitimate websites. That doesn’t make sense to me. What “holes” precisely will the bills leave? Why is it that the same remedy that destroys a legitimate site is completely ineffective against an illegitimate one?

          • Pieter Hulshoff

            I did, and I disagree with much of it. It seems strange to me how opponents claim that the bills will have no effect on illegitimate websites while at the same time they’ll be devastating for legitimate websites. That doesn’t make sense to me. What “holes” precisely will the bills leave? Why is it that the same remedy that destroys a legitimate site is completely ineffective against an illegitimate one?

            Well, let’s start with that DNS block you’re in favour of: it doesn’t help. Getting around a DNS block is as simple as changing your DNS entry (can be done automatically with a small program downloadable from the internet), install a DNS pluging (plenty of those around) or adding the names to your host file (can also be done automatically). All in all, getting around them is easier than downloading, installing and configuring a P2P program, which all of these people already managed to do.

            Delisting from a search engine? How many people do you think actually use a search engine to get to TPB? Legitimate businesses however, especially new ones, heavily rely on search engines to get themselves found.

            Removal from payment companies might be problematic, though I think most illegal sites don’t depend nearly as much on American payment companies as you think they do. They don’t really ship products after all.

            Most of them don’t use US advertisement agencies either. Those that do will simply switch to other agencies outside the US.

            What you’re mostly going to accomplish is an enormous boost to companies outside the US. I’m sure they will be thankful for all the extra business you will provide them.

            Let’s also not forget that these sites have ony recently entered the infringement domain. How many different platforms have we had since Napster? While you’re trying to work on yesterday’s infringers, new technologies are already available. In the end, only legitimate businesses will bear the cost of this law, though you may perhaps speed up the process of people shifting to the latest in infringement platforms.

          • Well, let’s start with that DNS block you’re in favour of: it doesn’t help. Getting around a DNS block is as simple as changing your DNS entry (can be done automatically with a small program downloadable from the internet), install a DNS pluging (plenty of those around) or adding the names to your host file (can also be done automatically). All in all, getting around them is easier than downloading, installing and configuring a P2P program, which all of these people already managed to do.

            I’m sure that many will do what it takes to get around the block. That’s not the point. The point is to make infringement as difficult as possible. A good case to look at is Rojadirecta. Even though they had their site up and running on a new domain name the next day, they lost a full one-third of their traffic (according to documents they filed in court). People saw the banner posted at rojadirecta.org and rojadirecta.com and apparently got the message. Just because DNS blocking isn’t perfect doesn’t mean we shouldn’t do it. It is effective to some degree.

            Delisting from a search engine? How many people do you think actually use a search engine to get to TPB? Legitimate businesses however, especially new ones, heavily rely on search engines to get themselves found.

            Removing infringing sites would obviously have an impact. While some may not use them to get to a particular site, obviously lots of people find sites using search engines. Again, just because the remedy doesn’t give perfect results doesn’t mean it’s not a good remedy.

            Removal from payment companies might be problematic, though I think most illegal sites don’t depend nearly as much on American payment companies as you think they do. They don’t really ship products after all.

            Megaupload raked in $110,000,000 using PayPal, according to the indictment. O’Dwyer raked in $230,000. The list goes on. Preventing payment companies from funding the pirates is a no-brainer. If we can do it, we should. There’s no reason to let pirates use PayPal.

            Most of them don’t use US advertisement agencies either. Those that do will simply switch to other agencies outside the US.

            What you’re mostly going to accomplish is an enormous boost to companies outside the US. I’m sure they will be thankful for all the extra business you will provide them.

            Fine with me. If we can stop them from using U.S.-based advertisers, we should do it. It matters not that the pirates will go overseas. The goal is to make it as inconvenient as we can for them. The remedy doesn’t have to be perfect to make it worth doing.

            Let’s also not forget that these sites have ony recently entered the infringement domain. How many different platforms have we had since Napster? While you’re trying to work on yesterday’s infringers, new technologies are already available. In the end, only legitimate businesses will bear the cost of this law, though you may perhaps speed up the process of people shifting to the latest in infringement platforms.

            I think the harder you make it to infringe and the more you drive it underground, the better. There will always be infringers. The goal is to minimize the impact, and that means doing what’s feasible to do. That’s all SOPA and PROTECT IP is about.

          • The point is to make infringement as difficult as possible.

            Thank you Daniel Glickman. But now you’re going to see a LOT of people point out how copyright law has progressed into censorship when before it was just a misdemeanor.

            Just because DNS blocking isn’t perfect doesn’t mean we shouldn’t do it.

            That’s exactly why you shouldn’t do it! It won’t affect piracy in the slightest, especially when people post up the IP address of all the favored sites of theirs. Then you believe that having so many “copyright/patent holders” aren’t going to use this and abuse this like they do the DMCA takedown notice? Please!

            While some may not use them to get to a particular site, obviously lots of people find sites using search engines

            Obviously, the concept of “social media” is lost on you. More people get to sites through their friends suggestions than Google now. Even though Google delisted certain terms, people got to their websites in another manner. You want to talk about a firewall and put one up. All of this is on a mere accusation of being an infringing site.

            If we can stop them from using U.S.-based advertisers, we should do it.

            Good to know that you’re not an economist that doesn’t understand the term “free market”. They use other materials, uproot American superiority in business, and takes the US back to the 1980s for two industries. Great plan of action there.

            Meanwhile, you’ve just stated you want all of the consumers that want legal content without all of the hassles need to be criminalized in order to protect them.

            Megaupload raked in $110,000,000 using PayPal

            Do you realize HOW MANY people used Megaupload for their own personal and legal uses? Why not look at #Megaupload for a second and tell me why people are complaining about their legal uses being subverted?

            O’Dwyer raked in $230,000.

            His actions were legal in the UK. That’s what matters.

            That’s all SOPA and PROTECT IP is about.

            Funny, why does the rest of the world disagree with your last paragraph. Censor sites in order to make profit through a government backed monopoly. Yeah…

          • His actions were legal in the UK. That’s what matters.

            The trial judge distinguished the case you guys are looking at and explicitly ruled that O’Dwyer’s actions were illegal in the UK: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/us-v-odwyer-ruling.pdf

          • @DH

            Do you remember the Oink proceedings and how that was deemed legal? Same occurrence, but the Extradition act is heavily favored towards the US extradition.

            I just find it odd how the judge pushed this onto the Secretary of State with very little in regards to actual reasoning of why Richard’s case is so vastly different from the other two that came before.

      • There’s no need to convince me that the rogue sites problem is very large. My main problem is that SOPA/PIPA really does little to nothing to actually fix the problem, while at the same time cause a huge amount of collateral damage in the process. People without even the slightest bit of knowledge about how the internet works are creating laws that define protocol changes that should be implemented.

        Someone already worded it very well. I hope you’ll find it as interesting to read as I did:
        Confessions from a Hollywood professions: Why I can’t support the Stop Online Piracy Act

        • There’s no need to convince me that the rogue sites problem is very large. My main problem is that SOPA/PIPA really does little to nothing to actually fix the problem, while at the same time cause a huge amount of collateral damage in the process. People without even the slightest bit of knowledge about how the internet works are creating laws that define protocol changes that should be implemented.

          Cutting off funding, removing DNS entries, and removing search results would negatively impact the sites being targeted. There’s only so much domestically that can be done against foreign rogue actors, but I see no reason to not do what’s possible.

          The worries about huge amounts of collateral damage seem unfounded to me. It’s as if opponents think that since there might be some unintended consequences then we shouldn’t do anything at all. Fighting crime always has pros and cons. The key is to minimize the negatives, and that’s done by providing for adequate procedures and narrowly drawn definitions. I think PROTECT IP and SOPA do just this.

          I agree that people who don’t understand DNS should hear from folks who do. Having read what Vixie has to say about it, I remain unconvinced that the internet will “broken” for anyone other than the pirates. And “breaking the internet” for the pirates is the whole point.

          • Thank you D.H., whoever you are, for your patience in responding to those who just parrot all of the disinformation out there. It must be exhausting.

          • Cutting off funding

            Try this again… Instills a new system of non-American processors, which is already forming.

            removing DNS entries
            Still won’t work against piracy. Now those pirates move to Bluetooth, IP addresses, and more magnet links. Bravo on not understanding the technology or the system of DNSSEC.

            removing search results would negatively impact the sites being targeted.

            To which more people discuss this as censorship and prior restraint.

            foreign rogue actors

            Ok… So did you see the Pirate Bay press release? Or did you miss the Megaupload arrests? How about thinking how Thomas Edison’s patents needed the protection so Hollywood moved out west to avoid them? Funny how you talk about foreign rogue actors who know our copyright history better than those within the US.

            Fighting crime always has pros and cons.

            Yep, we should ask that of Dajaz1.

            The key is to minimize the negatives, and that’s done by providing for adequate procedures and narrowly drawn definitions.

            Wait… This is coming from the ICE? The same organization that deported a girl for giving a fake name, has caused 5,000 children into foster care with bad immigration policies, embroiled in a lawsuit with a domain that wasn’t even heard of here in the US (Roja), seized 80,000 domains under false pretenses, and has handled the arrest of Megaupload personnel as a criminal enterprise and shown the world exactly how little they understand the digital technology?

            This is the company that understands adequate procedures? This is the definition of “narrowly defined”?

            Interesting definitions you have there…

          • Pieter Hulshoff

            @Concerned
            Considering that some here actually write lengthy and differing explanations of their positions, I doubt you can call it parrotting. Your words however sound very familiar…

            @DH
            Cutting off funding, removing DNS entries, and removing search results would negatively impact the sites being targeted. There’s only so much domestically that can be done against foreign rogue actors, but I see no reason to not do what’s possible.

            I do: if the cost of doing so (by far) exceeds the cost of not doing so. If the positive impact of a law is minimal, yet the cost to legitimate business may be huge, one should seriously reconsider that law.

            The key is to minimize the negatives, and that’s done by providing for adequate procedures and narrowly drawn definitions. I think PROTECT IP and SOPA do just this.

            We certainly disagree on that last part: I think the definitions in SOPA and PIPA are way too vague as written. In order to weigh the pros and cons, you should also look at the pros, and so far they are minimal. None of the big offenders are even within the scope of SOPA, and the small offenders will hardly be impacted. I’d never even heard of most of them, let alone that they will come up in the top 5 pages of a search. The DNS blocks are easier to defeat than installing a P2P program in the first place. I wouldn’t even be surprised if the next versions already come with DNS block circumvention built in.

  13. Not all of it, of course. Legislation can be difficult for even lawyers and Congressmen to understand — and copyright law is an especially difficult subject to grasp. How is copyright law difficult to understand?

    I understand you are trying to defend- nay, SUGARCOAT the SOPA and PIPA bills. However, there are people out there who understand the bills and STILL oppose them.

    Under SOPA, for example, the remedies are only available to a copyright holder if a site is “primarily designed” for offering goods or services that infringe copyrighted works, “for purposes of commercial advantage or private financial gain, and with respect to infringement of complete or substantially complete works.” (Emphasis added).
    Uh huh, sure. Somebody on a respectable site happens to have one html file that has a link to an infringed work. Under SOPA, the whole site can go down.

    If a copyright owner wishes to take action against such a site, it must file a lawsuit in court, where the site owner is protected by the same due process safeguards as any civil defendant.

    I’m sorry, but this is b******t. Did someone already mention ex-parte hearings? Good. Go find their comment and read it.

    • Somebody on a respectable site happens to have one html file that has a link to an infringed work. Under SOPA, the whole site can go down.

      For someone who has claimed that copyright law, or perhaps this law, is not “difficult to understand,” you are advancing the same patently false argument typical of either someone who is being disingenuous, or someone who hasn’t read or understood the bill. Your claim that the law is easy to understand rules out the latter, so I’m left to conclude the former.

      So I will ask you the same question that I ask everybody who has subscribed to the one link fallacy. Please give me an example of how one link, on an otherwise legitimate site, would result in your parade of horribles, with citations to the language in the bill that supports your assertions.

      <bI’m sorry, but this is b******t. Did someone already mention ex-parte hearings? Good. Go find their comment and read it.

      Perhaps you should take your own advice. I refer you to Section 102, where, upon commencing an action, the Attorney General must:

      (1) send notice of the alleged violation(s) and an intent to proceed with action to one or more of the following place: the registrant at the address listed in the whois database, the registrar of the domain name, any address listed on the website in question, and/or the entity responsible for allocating the website’s IP address; notice may also be sent in any manner additionally required by the court pursuant to the federal rules of civil procedure. Nothing in the language prevents a person from showing up to contest the action at this stage;

      and

      (2) Virtually anyone who is the subject or recipient of the injunction can have a hearing to vacate, modify, or suspend it.

      Notice + ability to be heard = due process.

      • Then why did Dajaz1 have no hearing for a year, Rojadirecta has not been given their site back, Richard O Dwyer is to be extradited and Megaupload, even though it has a lawsuit with Universal, is being charged with criminal copyright infringement?

        The support for SOPA seems to be even less so, since the private police force of Disney can take down any competition they want through the civil forfeiture laws.

      • Pieter Hulshoff

        As Jay already stated: similar laws like this have already been abused to do just that. You’ll have a hard time convincing anyone of the “safety” of laws like SOPA and PIPA while similar laws are abused on a regular basis. History proves that laws like this can, and will be abused.

        • Why would they use this weak bill to “abuse”?

          If the intention or worry is of abuse, i’ll inform you they already have much MUCH more effective legislation to do the deed (ever heard of the Patriot Act?)

          Seems most everybody is in agreement that infringment is a major problem.. but the Tech sector cries ‘break the internet’ anytime legislation comes to to curb it.

          Here’s a hint: if people weren’t greedy bastards, legislation like this wouldn’t be needed. If the Tech sector did a MINIMUM amount of throwing us a bone, legislation like this wouldn’t be needed.

          …But companies like Google don’t want to loose there 10’s of millions of dollars they get from ads on these rogue sites.

          Here’s an idea for Google:
          http://themusicaldisconnect.blogspot.com/2012/01/google-announces-ads-free-just-buy-tee.html

          • Seems most everybody is in agreement that infringment is a major problem..

            Where is infringement a problem? Musicians make money, companies are making money, and new businesses are starting. So where is the money problem you so richly seem to believe is occurring?

            but the Tech sector cries ‘break the internet’ anytime legislation comes to to curb it.

            Try again when the entire debate process for SOPA was shrouded in secrecy between the White House and the MPAA. Make your argument believable this time.

            Here’s a hint: if people weren’t greedy bastards, legislation like this wouldn’t be needed.

            Sure, let’s look at Phillippe Dauman, NBC’s lawyer Cotton, and how Universal just took down their competition in Megaupload. If they weren’t so intent on trying to control the world and revert it to the 1980s and make their own alternative, viable models of cyberlockers, and streaming websites they would be able to reduce piracy. But I guess that’s not on their agenda while they try to bring back the VCR and DVD sales of yesteryear.

            But companies like Google don’t want to loose there 10′s of millions of dollars they get from ads on these rogue sites.

            And the music and movie industry don’t understand customers. They don’t understand the new global market at all, instead opting for a fight against reality. You really believe they’ll stop piracy with enough legislation?

            We’ve had a number of copyright legislations in the past 40 years. None of them have worked. Piracy continues. The reality: Compete against piracy instead of criminalizing it.

            So if that means sell a T-shirt, then do so. If that means selling DVDs in a movie theater, then do it. The legislation process has not worked. They worked on the Home Audio Recording Act, along with every last copyright problem since 1976. Copyright is not the magic bullet to get customers. So why do people believe it’s to be used for everything and magically solve all of their problems?

      • And in typical pro-piracy fashion, nobody can answer the question.

        • Now you’re just being obtuse. Care to explain how some domestic websites can be mislabeled by the domain name issue?

          Reddit can be mislabeled a “foreign site” because they have Redd.it in their name. Same with Bit.ly This is through a vague understanding of (5) DOMESTIC INTERNET SITE and (8) FOREIGN INTERNET SITE. This can be interpreted to have severe consequences for sites that use a different naming system than .com, .org and .us which is why they’re concerned. With (23) U.S.-DIRECTED SITE, the very vague portion comes into 23(B) where it states:

          there is evidence that the Internet site or portion thereof is intended to offer or provide–

          So if your site happens to have Americans running onto it, it’s liable for damages. Then there’s the problems of 23(C) that state if they don’t follow American copyright law, they are susceptible to becoming a part of US jurisdiction. And we’ve seen that. This is just the definitions.

          If ANY part of the site is found in violation, the entire SITE can be taken down. This is the problem with the law.

          How the hell can you say that people are passing patently false information when you can look at the Chanel case as long with the cases I’ve just mentioned along with the 400 domain seizures and say this is “justified” action when the government is utilizing prior restraint for all of them?

          Then you want to add to 102 the vague language:

          The In rem action in 102(b)(2) – If through due diligence the Attorney General is unable to find a person described… or no such person found has an address within a judicial district of the United States, the Attorney General may commence an in rem action against a foreign infringing site or the foreign domain name used by such site.

          Translation for due diligence. Unknown. They could send snail mail for 14 days and that’s their “due diligence”. Or an email that may get into a person’s spam account.

          The reason most DNS providers (OpenDNS etc) are against the bill is because of these vague definitions. They won’t be able to provide their service within the US and would have to relocate to other countries. The US would be stuck behind a firewall where their innovation is stagnated, we arrest people for copyright infringement, increased liability costs are given to domestic actors, and the Americans we supposedly protect have their platforms for expression chilled.

          Care to respond to the actual points raised or do you want to play the ignorant “this is about piracy” card that you like to play?

          • Jay,

            The question Jason was asking for an answer to was this:

            “Please give me an example of how one link, on an otherwise legitimate site, would result in your parade of horribles, with citations to the language in the bill that supports your assertions.”

            You responded with a discussion of how the definition of “U.S.-Directed Site” includes sites where only a portion of the site is directed at US users. Fair enough, except that this is both irrelevant and wrong.

            First, whether or not a site is “U.S.-Directed” does not determine whether it is considered a “foreign infringing site,” which is what is required in order for the AG to take any action (see Section 102(a)). You’re looking at the wrong part of the bill.

            Second, you’re quoting an outdated version of the bill, which no longer includes the language you referred to. In the older version you quote, you would be correct to say that the bill addressed sites where only “a portion of” the site had infringing content – but in that version, the remedies and penalties were to be directed to the foreign infringing site or “portion of such site,” as directed by the court (see Section 102(b)(5)). So the intent was clearly to tailor the remedy to the scope of the violation, not to give the US courts power to shut down a site based on a single infringing link.

            But all of that has been made completely irrelevant ever since the December amendment, in which the “a portion of” language was removed entirely, from both definitions. The newer version, if you haven’t seen it, can be found at http://judiciary.house.gov/hearings/pdf/HR%203261%20Managers%20Amendment.pdf. You’re reiterating an argument that was off-base to begin with, about language that isn’t even there anymore.

            And you go on, to conclude “So if your site happens to have Americans running onto it, it’s liable for damages.” Putting aside the logical leap caused by you looking at the wrong definition, there is nothing in SOPA that makes any website, anywhere, under any circumstances, “liable for damages.” The only provision for damages was in the version you’re quoting (it’s gone now), and it applied to anyone who knowingly misrepresented that a site is dedicated to infringement (see Section 103(b)(6)).

            And still you ask, “How the hell can you say that people are passing patently false information…?”

          • The questions of Dajaz1, Rojadirecta, etc. were ignored. I quoted the exact language that brings up most of the problems that the public has with the bill. I haven’t even gotten to section 105 where you can discuss the private right of action and the complications of the immunity clause.

            The fact remains that this bill is so problematic and ripe with abuses that it’s time to scrap the damn thing. Oh sure, you might “inconvenience” piracy. Meanwhile, evidence points to piracy being more prevalent than most imagine. It’s time to stop the war on piracy. It’s akin to the war on drugs with even less harm being shown.

  14. I’m sure that many will do what it takes to get around the block. That’s not the point. The point is to make infringement as difficult as possible.

    And do that no matter the cost to legitimate businesses and DNS providers? Please, do realise that there are costs involved in implementing these measures, and if they outweigh the benefits then people should reconsider such laws. DNS blocks aren’t even a speedbump; they’re a rabbit dropping in the way of a monster truck.

    A good case to look at is Rojadirecta. Even though they had their site up and running on a new domain name the next day, they lost a full one-third of their traffic (according to documents they filed in court).

    Well, aside from the fact that Rojadirecta was a Spanish site, run in and from Spain, and was declared legal in Spain…, but let’s not get too deeply into the US enforcing their laws on companies in other sovereign nations shall we? Rojadirecta wasn’t DNS blocked; their site name was taken from them. As such it was removed from all DNS servers in the world.

    Removing infringing sites would obviously have an impact.

    Yes, but once again: there are costs involved in such measures. The impact for sites like this is minimal, but it’s American companies who bear the cost of implementing the measures. Again: cost-benefit analysis.

    Megaupload raked in $110,000,000 using PayPal, according to the indictment. O’Dwyer raked in $230,000. The list goes on. Preventing payment companies from funding the pirates is a no-brainer. If we can do it, we should. There’s no reason to let pirates use PayPal.

    Megaupload isn’t within the scope of SOPA, remember? Still, taking funds is indeed a good idea, and even a part of the alternative proposal many in the tech community do support. At least such a measure should be reserved until after a full trial though, to prevent abuse.

    Fine with me. If we can stop them from using U.S.-based advertisers, we should do it.

    So it’s fine that non-involved US sites bear the cost of measures that have minimal impact on infringing sites? They’re likely to be paying much more for implementing these measures than the entertainment industry will see in profit increases due to these measures. A very questionable law if you ask me.

    I think the harder you make it to infringe and the more you drive it underground, the better.

    If by underground you mean that you feel safe that it’s happening more than before, but you just can’t trace it anymore, then you and I have a completely different view of what’s good for rights holders. At least with the current ways it’s possible to trace the infringement back to the source.

    That’s all SOPA and PROTECT IP is about.

    That’s the intention behind those laws perhaps, and I support those intentions, but that’s not the effect of the actual laws.

    • And do that no matter the cost to legitimate businesses and DNS providers? Please, do realise that there are costs involved in implementing these measures, and if they outweigh the benefits then people should reconsider such laws. DNS blocks aren’t even a speedbump; they’re a rabbit dropping in the way of a monster truck.

      There are costs, but I feel like you and other opponents are significantly undercutting the benefits. For example, with Operation in Our Sites there have been 350 domain name seizures. Over 99% of those are a success, yet you want to only focus on the one or two that are questionable. Same thing with the rogue sites. You seem to imply that if you haven’t heard of a site, then it’s not big and not a problem. Do you think those 400 sites selling counterfeit UGG goods were not a problem? I bet you never heard of any of those sites. Obviously a lot of bad sites would get what’s coming to them, and for the most part the program would do what it’s intended to do. Opponents love to cherry-pick the weakest points and harp on those, while missing the forest for a few trees.

      Well, aside from the fact that Rojadirecta was a Spanish site, run in and from Spain, and was declared legal in Spain…, but let’s not get too deeply into the US enforcing their laws on companies in other sovereign nations shall we? Rojadirecta wasn’t DNS blocked; their site name was taken from them. As such it was removed from all DNS servers in the world.

      The Rojadirecta domain names were property located in the U.S., and therefore the courts were able to exercise in rem jurisdiction over them. The fact that the underlying websites were legal in a foreign country is completely irrelevant. Rojadirecta was diverted at the DNS level and the domain name now resolves to that ICE warning banner. The point I made, which is that they lost one-third of their traffic even though they were still available at alternative domain names, still stands. You said that messing with the DNS system would not work yet we have a good example of it working as planned.

      Yes, but once again: there are costs involved in such measures. The impact for sites like this is minimal, but it’s American companies who bear the cost of implementing the measures. Again: cost-benefit analysis.

      And I don’t buy the argument that the Googles or PayPals of the world shouldn’t be responsible for some of the costs of implementing the legislation. You are overplaying the costs and underplaying the benefits, IMO. And you aren’t considering the profit those sites make from piracy and other illegal activities. See, e.g., http://www.justice.gov/opa/pr/2011/August/11-dag-1078.html

      Megaupload isn’t within the scope of SOPA, remember? Still, taking funds is indeed a good idea, and even a part of the alternative proposal many in the tech community do support. At least such a measure should be reserved until after a full trial though, to prevent abuse.

      I know Megaupload isn’t within SOPA’s scope. The point still stands that criminals use PayPal, and it makes sense for courts to be able to tell PayPal to stop doing business with criminals. The alternative would be to say that courts can’t tell PayPal to stop doing business with sites dedicated to illegal activity, and that makes no sense. There’s no need for a full trial. Courts order third parties to do or not do things all the time in a TRO or preliminary injunction setting. I can’t help but feel that opponents want to make this hard for rights holders and simple for pirates. Why should pirates get more protection than other defendants in the federal civil courts? I don’t get it. There’s no reason to not make pirates subject to a TRO just like any other defendant.

      So it’s fine that non-involved US sites bear the cost of measures that have minimal impact on infringing sites? They’re likely to be paying much more for implementing these measures than the entertainment industry will see in profit increases due to these measures. A very questionable law if you ask me.

      Yes, it’s fine to order third parties to not do business with or help the business of pirates. We do this everyday in the real world, why shouldn’t we do it in cyberspace? I’d like to see evidence that the costs of implementing it would be more than the profit increases. If anything, I’d say that hasn’t been shown either way, nor will it likely ever be decidedly shown. It’s notoriously difficult to measure the effects of piracy.

      If by underground you mean that you feel safe that it’s happening more than before, but you just can’t trace it anymore, then you and I have a completely different view of what’s good for rights holders. At least with the current ways it’s possible to trace the infringement back to the source.

      By pushing it underground it would be less attractive and less of a problem, not more of one. See, e.g., Rojadirecta’s loss of one-third of their traffic. Opponents love to say that it won’t do any good, but the facts in Rojadirecta’s case say otherwise. The harder it is to break the law, the less people will do so. Rojadirecta is a fine example of that.

      That’s the intention behind those laws perhaps, and I support those intentions, but that’s not the effect of the actual laws.

      I think it’s the intent and the effect, but I can understand that you are obviously skeptical of every facet of this. If you have an alternative solution to the problem, then I hope you’ll spread the word to others. I know the tech guys say they want a seat at the table, but I have serious reservations that any better plan will come of that.

      • “I can’t help but feel that opponents want to make this hard for rights holders and simple for pirates.”

        You’re starting to understand what is happening.

      • Pieter Hulshoff

        There are costs, but I feel like you and other opponents are significantly undercutting the benefits.

        The benefits would be the increase in profits due to reduced infringement. Research has already shown that if ALL the bittorrent traffic would shift to Netflix, the resulting revenue would be $60M. I can tell you: that doesn’t even come close to covering the cost of implementing these measures. A DNS block doesn’t solve anything: we’ve had those against TPB in several European countries for some time now, and the site’s more popular than ever.

        For example, with Operation in Our Sites there have been 350 domain name seizures.

        Exactly: domain name seizures. That’s something done at the DNS root level, which considering these were .com domains, they were on a US root server. The sites SOPA/PIPA targets however are NOT. A DNS block is not the same as a domain name seizure, and can be easily circumvented.

        Opponents love to cherry-pick the weakest points and harp on those, while missing the forest for a few trees.

        Most of us actually support the idea behind the laws. The implementation’s just so terribly bad that it won’t do much to reduce infringement, but cause a variety of collateral damage to legitimate businesses. That‘s why almost the <b<entire tech industry is up in arms, something that hasn’t happened since God knows when.

        And you aren’t considering the profit those sites make from piracy and other illegal activities. See, e.g., http://www.justice.gov/opa/pr/2011/August/11-dag-1078.html

        I’m sure that websites like MegaUpload are making a fortune from this. I do however find the position that search engines, DNS providers, and payment providers profit from infringement insulting. It’s like saying that Ford profits from bank robberies, because the robbers used a Ford.

        The point still stands that criminals use PayPal, and it makes sense for courts to be able to tell PayPal to stop doing business with criminals.

        We actually agree here, but I do think that that should be done on a global level (or at least in working together with the EU), and only after a full trial has found the site guilty.

        By pushing it underground it would be less attractive and less of a problem, not more of one.

        Yes, because taking down Napster, Gnutella, Limewire, Kazaa, etc. has done wonders to reduce infringement. Oh, wait…

        If you have an alternative solution to the problem, then I hope you’ll spread the word to others.

        There’s already an alternative proposal on the table that is supported by many in the tech industry.

        • There’s already an alternative proposal on the table that is supported by many in the tech industry.

          Are you referring to the OPEN Act?

          • Pieter Hulshoff

            Yes, it includes cutting off payments to infringing sites as far as I know. I haven’t really studied it yet due to the SOPA/PIPA debates.

      • Over 99% of those are a success, yet you want to only focus on the one or two that are questionable. Same thing with the rogue sites.

        NONE of them got a trial. NONE of them got due process. And ICE has a HORRIBLE track record even in immigration. The same thing they’re doing in immigration (stomping on civil rights for apportionment money) is EXACTLY what they’re doing in the copyright issue. They have deported over 1 million people and put them in the worst conditions. And if they talk about their conditions, they’re silenced by ICE to not talk. This is the “success” you want to espouse?

        Opponents love to cherry-pick the weakest points and harp on those, while missing the forest for a few trees.

        Because you like to cherry pick that not one example pulled from the 400 domains did a damn thing to stop any piracy.

        The point I made, which is that they lost one-third of their traffic even though they were still available at alternative domain names, still stands.

        Have you checked them now? Do you know if the damage rerouted? Why the hell did anyone care about Rojadirecta if the site wasn’t even a US directed site?

        And I don’t buy the argument that the Googles or PayPals of the world shouldn’t be responsible for some of the costs of implementing the legislation.

        Google has a bad rep from some of their actions, but Paypal serving customers? Let me know when that comes around.

        You said that messing with the DNS system would not work yet we have a good example of it working as planned.

        You really need to look at all of the companies that will abuse the DNS system before you say it will work “exactly as planned”. Judging from the constant DMCA takedowns that are abused the “break the internet” meme would become a reality since most companies will do everything in their power to stifle competition. Look at how Universal stifled others.

        The point still stands that criminals use PayPal, and it makes sense for courts to be able to tell PayPal to stop doing business with criminals.

        Define “criminal” without weasel words such as “rogue website”. Customers use Paypal because it’s everywhere. Criminals would use other alternatives since Paypal has a horrible reputation anyway. All you’re doing is giving Paypal a worse reputation than before. Congratulations.

        I can’t help but feel that opponents want to make this hard for rights holders and simple for pirates.

        HA! With all of the laws available to rights holders already, all anyone is asking for is due process of law where both parties are in a trial and can hear the information. And if the court thinks one is wrong, it gets shut down. If the rights holder is wrong, they pay for damages since their copyright was not infringed. Is that little tidbit so hard to understand as due process instead of expedited injunctions where the victim site isn’t privy to this?

        Why should pirates get more protection than other defendants in the federal civil courts?

        That’s like asking why expedition of Richard O Dwyer is needed when piracy continues even though his website is down.

        I know the tech guys say they want a seat at the table, but I have serious reservations that any better plan will come of that.

        Obviously, telling them that the MPAA should promote innovation and competition is just too hard to fight piracy when Netflix was beating torrents as a viable alternative to piracy. Also, understanding all of the business model problems (overpriced DVDs that people don’t want, changing consumer demands, less TV audience from cable cutting) might help in your confusion on why this isn’t a legal issue.

  15. Terry: I’m not hostile to SOPA, but I do find parts of it obscure. I would especially like some analysis of the definition of ‘foreign infringing site’, which in the draft you link to leaves a crucial part of the definition in cross-references to other legislation. Having been involved in drafting of (UK) legislation myself, I know how convenient this kind of cross-reference is, but it does nothing to allay suspicions that there is some hidden motive. In comments on another website yesterday I was trying to reassure people that SOPA could not be used to stifle websites that merely had an occasional link to infringing content, but I was uneasily conscious that if pressed I couldn’t swear that this was absolutely impossible within the letter of the draft text. Maybe you could give a more detailed analysis some time, or link to a suitably accurate analysis if you know of one.

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