In a story Hollywood wishes were its own, the tumultuous battle surrounding SOPA and PIPA last week resulted in an inspiring, albeit brief, victory for users of the internet and the voting public at large. But at the awards party, while everyone was high-fiving and chugging Champagne, someone broke in and stole the civil liberties online users thought had been saved. Now, in our half-drunk party haze, we try to assess what just happened—and where we go from here.
Quick Plot Synopsis
Act I: After months of growing concern online and increasingly worrisome newspaper articles, Wikipedia, Reddit and dozens of other websites go "dark" Jan. 18 in protest of the antipiracy legislation they fear could "shut down the internet." This leads to national media coverage putting pressure on Capitol Hill to postpone both bills.
Act II: Literally at the same time, the U.S. government shows how this legislation would work—or, perhaps, demonstrates its redundancy—by shutting down file-transfer site Megaupload, which it deemed "responsible for massive worldwide online piracy of numerous types of copyrighted works." The Department of Justice announced the shutdown Jan. 19, and the next morning, Senate Majority Leader Harry Reid, D-Nev., announced he would postpone the vote on PIPA he was so desperately pushing for just one day prior.
Act III: This has yet to be fully written. Minutes after the Megaupload shutdown, hacker group Anonymous crashed sites of several organizations affiliated with the process, the FBI and the Department of Justice, as well as entertainment-industry groups like the MPAA and RIAA. But nobody knows what comes next. In a Lost-esque writing style, the script is given to the players with fresh ink. Maybe SOPA and PIPA will be amended to reflect public concern. Maybe they'll drop out of public eye and pass with little fanfare next month. Or maybe, with the shutdown of one of the world's largest copyright infringers, proponents and lobbyists will determine that legislation is unnecessary, garnering several upvotes and raking in karma points.
But on Capitol Hill, Mr. Smith does not always go to Washington. There are few true Hollywood endings in Congress, and plenty of rewrites. Grab the popcorn, because it's likely that SOPA and PIPA will emerge again in that most dreaded of Hollywood clichés: the money-grubbing sequel.
SOPA (the Stop Online Piracy Act, HR 3261) and PIPA (the PROTECT IP Act, S 968) target foreign "rogue" websites dedicated to illegally offering copyrighted materials. SOPA's description includes promoting "prosperity, creativity, entrepreneurship, and innovation by combating the theft of U.S. property, and for other purposes."
The idea behind SOPA and PIPA is to thwart the piracy of movies, music, books, artwork and other copyrighted materials online by making the host responsible rather than the user. Right now, if a 15-minute clip of Avatar got posted on YouTube, the site would remove the offending clip and any legal action would be brought against the person who posted it. Should SOPA pass in its current incarnation, YouTube itself would bear criminal charges, regardless of its knowledge of the offending post.
Sonic.net CEO Dane Jasper sums up the collective argument of millions of internet users and hundreds of companies: "My concern is that this is the beginning of the road to an internet that could be censored."
As the head of Sonoma County's largest ISP, Jasper has reason to be concerned. Passage of SOPA or PIPA would mean implementation at Sonic.net of a new filtering system, a new infrastructure and new costs. But moreover, Jasper is against the idea from a moral standpoint. "I am fundamentally opposed to tampering with the underpinning of the internet," he says, "and creating an enforcement tool that I believe would overreach, in a sense, to solve the problem of piracy."
Jasper continues, cognizant of the underlying problem: "DMCA [Digital Millennium Copyright Act] and others do function well. Piracy and counterfeiting is illegal, and we have the tools to counter those problems."
Peter Phillips, president of the Media Freedom Foundation and founder of Project Censored, says passage of the bills, despite their proponents' claims otherwise, would equate to censorship. "We need to have zero interference with the free flow of information on the internet," he says.
Phillips envisions a scenario whereby the government could use the vague wording in the bill to shut down websites it deems threatening to homeland security—or worse, sites that it just plain doesn't like.
Aside from potential censorship, there are other possible unintended consequences of the two bills.
Because private companies could sue service providers for unknowingly hosting copyrighted materials, companies like Facebook, Google, Wikipedia and other user-generated content sites would be forced to dramatically restructure and monitor content, possibly delaying posting times and removing the immediacy of the social experience, losing customers and therefore losing revenue.
The bills' goal is to combat foreign sites stealing American companies' intellectual property, but American sites that don't fall under defined domestic URLs can be targeted. Conversely, sites based outside of the United States with .com, .org, .us and other suffixes—like Pirate Bay, for instance—are defined as "domestic" in the bills and would not be targeted. Many argue that because of this alone, neither of these bills would make any headway in combating online piracy.
"They're both totally horrible draconian attempts at controlling the internet," says Schell Scivally, lead developer at Petaluma tech company the Synapse Group. "If I have a website that has users, I don't want to be responsible for anything they post up there, because that's not me, it's the users."
As a programmer and site designer, Scivally says, "it would affect the way we have to structure our websites. It would mean a lot more work, actually."
In Silicon Valley, startup companies rarely have funds for a large legal team. An idea is developed and the details are sorted out later if it becomes popular and financially viable. According to a Booz and Co. study released in November, holding hosts rather than users accountable for content could reduce the pool of "angel investors" for startup companies by 81 percent.
"If [a startup company] is a social technology, you're pretty much screwed, unless you have a lot of money dedicated to customer moderating," said Scivally. "It forces [social media sites] to become Big Brother."
The Empire Strikes Back
With so much protest, why would something like PIPA initially enjoy the co-sponsorship of 40 out of 100 senators? Who supports it, anyway?
The bill, introduced by Sen. Patrick Leahy, D-Vt., is primarily supported by the movie and music industries. The MPAA, Comcast, Viacom, News Corp., Sony Pictures, Sony Music, NFL, MLB, NBA, RIAA, CBS, ASCAP and a handful of other acronym-happy companies assert that these bills will protect their rights as copyright holders.
In a Jan. 13 email, Sen. Barbara Boxer's press secretary Andy Stone wrote, "Sen. Boxer supports and is a cosponsor of the PROTECT IP Act. She has a long record of working to protect intellectual property and fight piracy." Sen. Feinstein, initially listed as a co-sponsor, said through her press secretary Brian Weiss that she supports postponing the bill to look more closely at its provisions.
In the North Bay, Rep. Mike Thompson is against SOPA. "The internet is an amazing tool for communication, innovation and economic development," he says via email. "The overly broad Stop Online Piracy Act would stifle that innovation, resulting in fewer new businesses, fewer new investments and fewer new jobs. While online piracy is something we must continually fight, SOPA is something we cannot afford."
Rep. Lynn Woolsey "doesn't have a firm commitment at this time," her communications director Bart Acocella said on Jan. 12. Because SOPA keeps changing, "she needs to think it through a little more," he said.
Rep. Lamar Smith, R-Texas, who proposed the bill in October, said in a statement responding to the Wikipedia blackout on Jan. 18, "The Stop Online Piracy Act cuts off the flow of revenue to these foreign illegal sites and makes it harder for online criminals to market and distribute illegal products to U.S. consumers. . . . [A]nd it provides innovators with a way to bring claims against foreign illegal sites that steal and sell their technology, products and intellectual property."
The Motion Picture Association of America released a statement Jan. 14, which read: "The American businesses that are victimized on a daily basis by global internet thieves are among the most innovative industries in this nation, and we welcome the administration's support of these American businesses. Every day, American jobs are threatened by thieves from foreign-based rogue websites. This deplorable situation persists because U.S. law enforcement does not have the tools to fight back."
Though they're powerful, the MPAA and other groups supporting these acts are in the minority. Companies formerly in favor of the bills are withdrawing their support, and many in the online community feel the same as Jasper: that passage could lead to internet censorship. It appears the underdog is gaining traction.
Companies publicly against SOPA and PIPA include Google, Yahoo, Twitter, Facebook, AOL, Tumblr, eBay, Reddit, Microsoft, Rackspace, O'Reilly Media, the American Civil Liberties Union and a host of other internet companies, human rights groups and nonprofits dedicated to protecting free speech. Many of these companies collectively placed a full-page ad in the New York Times Nov. 15, stating, "We are concerned that these measures pose a serious risk to our industry's continued track record of innovation and job creation, as well as to our nation's cybersecurity."
Users of the internet at large are also against the bills. Once news broke that domain host GoDaddy supported SOPA, the company lost 29,000 domain registries in about a week, adding up to around $300,000 annually. GoDaddy has since changed its "official" stance on the issue, but did not win back many, if any, customers.
Congress has also been bombarded with calls. Sen. Leahy released a statement Jan. 12, saying, "I and the bill's co-sponsors have continued to hear concerns. . . . This is in fact a highly technical issue, and I am prepared to recommend we give it more study before implementing it."
A Bigger Boat
The PROTECT IP Act, in various forms, has a losing track record. In 2010, it was voted down as the Combating Online Infringement and Counterfeits Act (also introduced by Leahy). The provisions in that bill were almost identical to PIPA, but it was so broad that it was shot down in the Senate, despite bipartisan sponsorship.
The White House released a statement Jan. 13, saying, "While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk or undermines the dynamic, innovative global internet."
The statement continues: "New legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal activity."
So is this a win for the internet? A victory for the champions of free speech? Not quite.
SOPA and PIPA are still out there, looming like sharks just offshore, awaiting their reintroduction to the congressional floor. By shutting down Megaupload, the federal government has already shown its ability to enact the crux of these measures without enacting additional legislation. But with massive lobbying money behind the bills, SOPA and PIPA could very likely emerge anew with proudly touted "revisions" and a new name. Already, two such bills, ACTA and OPEN, have been introduced.
To completely blow the spectre of internet censorship brought on by SOPA and PIPA out of the water? That'll require counterlegislation to tackle the problem in a different way. In other words, we're gonna need a bigger boat.
History of the World, Part I
Sept. 20, 2010: Sen. Pat Leahy, D-Vt., introduces COICA (Combating Online Infringement and Counterfeits Act). It was shot down in the Senate for being too vague.
May 12, 2011: Leahy introduces PIPA (PROTECT IP Act). Tech blogs recall COICA and say this might even be worse, but little is made of it outside of blogs and tech magazines.
Oct. 26: Rep. Lamar Smith, R-Texas, introduces SOPA (the Stop Online Piracy Act) in the House of Representatives.
Nov. 15: Google, Facebook and others take out a full page ad in the New York Times opposing SOPA and PIPA.
Dec. 29: GoDaddy.com reverses its pro-SOPA stance after losing 29,000 customers in less than one week. Jan. 14, 2012: White House announces it will not support SOPA or PIPA as written.
Jan. 16: Congress delays vote on SOPA until at least February due to mounting public pressure.
Jan. 18: Wikipedia, Reddit and other popular sites go "dark" in protest of SOPA and PIPA. Google draws over 7 million signatures on a petition to stop the legislation.
Jan. 18: Sen. Ron Wyden, D-Ore., and Rep. Darrell Issa, R-Calif., introduce OPEN (Online Protection and Enforcement of Digital Trade Act) as an alternative to PIPA and SOPA, respectively.
Jan. 19: Megaupload, one of the largest file trading networks (and allegedly one of the largest sources of pirated intellectual property) is shut down by the U.S. Department of Justice.
Jan. 20: Rep. Smith pulls SOPA from consideration until there is "wider agreement on the solution." Senate Majority Leader Harry Reid, D-Nev., announces a postponement of voting on PIPA until a consensus of its provisions could be reached.Jan. 22: Sites similar to Megaupload—Upload.to, FileSonic—halt activity in fear of similar shutdown.
Ahead of the Curve
Digital pirates have been around since the preteen days of the internet, back when they called themselves "Goonies." Tim O'Reilly, a Sebastopol native who has been on the cutting edge of media and digital technology for decades, had a take on piracy 10 years ago that could be applied to today's argument.
From a post on his site, O'Reilly Radar, in 2002: "The simplest way to get customers to stop trading illicit digital copies of music and movies is to give those customers a legitimate alternative at a fair price."
In effect, O'Reilly argued against SOPA and PIPA even before they were conceived. "We see no need for stronger copyright laws, or strong Digital Rights Management software," he wrote, "because existing law allows us to prosecute the few deliberate pirates."