Standing against SOPA/PIPA

by Michael Tuck

[SOPA is] an ill-conceived lobbyist-driven piece of legislation that is technically impossible to enforce, cripplingly burdensome to support, and would, without hyperbole, destroy the internet as we know it. — Jeffrey Zeldman

Imagine a country where the government is able to shut down Web sites at the slightest provocation, where elected representatives invoke fears of ‘overseas pirates’ to defend the interests of domestic industries, and where Internet companies like Google must cave in to the demands of government censors or risk being shut down. No, we are not talking about China, North Korea or Iran — we are talking about the United States, where legislators in both the House and Senate are attempting to push through new anti-piracy legislation by year-end that would benefit Hollywood at the expense of Silicon Valley. — Dominic Basulto, founder of Corante

This article was written for Six Revisions in late December 2011, in time for the SOPA/PIPA debate and mid-January 2012 boycotts. Due to circumstances beyond my control, Six Revisions was unable to publish the article. It is no longer of timely interest. But I would like to share it with the Internet community, so I’ve taken it upon myself to publish it on my own site. I appreciate Jacob Gube’s interest in the article and trust that my choice to publish it does not infringe on any copyright interests. The article that follows is as it was submitted for publication, word for word.

Warning: This article contains a significant amount of political opinion. It’s about a piece of political legislation, and I’m a politically active guy. I don’t expect everyone to agree with my stance. Certainly it does not necessarily reflect the stance or opinions of anyone involved with Six Revisions. I’m sure there are people in the editorial office who disagree with some of the material in this article. That’s sort of the point: we come together in disagreement and discuss our differences. I won’t argue politics in the comments of this article, though I will gladly, and politely, respond to commenters who have a stance of their own. I thank Jacob Gube for giving me a platform to share my views.

SOPA/PIPA: Not Just for Dessert Any Longer

What do you think of when you hear the term “online piracy”? Maybe you think of Lars Ulrich threatening to pound drumsticks into the ears of Metallica fans who dare to download freely distributed files of their songs over “pirate” Internet distributors such as Napster. Or maybe you go, “Gee, do those evil Somali pirates have a Website?” It’s entirely likely when you hear of a piece of legislation entitled the Stop Online Piracy Act, or SOPA for short, your first reaction might be supportive: “Hey, I don’t like online piracy. It oughta be stopped.” And there are good reasons for wanting “online piracy” stopped. If Grandma is low on money and decides to buy her heart medication online, you want to be sure that the Website selling her the meds is selling real, full-strength medication and not selling counterfeit capsules packed full of dryer lint. Certainly we get tired of seeing bogus Web sites pack their pages with stolen content, especially when it’s our content; businesses and content creators such as Metallica and ourselves certainly deserve to make a fair profit on the material we produce.

The same thing applies to Web designers and developers. Certainly the members of the design/development community deserve to be paid a fair wage, and make a fair profit, on their work. We have enough worries on that front already without having to wonder if we’re having our work pirated. When I wrote my first-ever article back in 2001, I eventually did a vanity search to find out who was linking to my pearl of wisdom, and was shocked to find site after site reprinting it without asking me or the publisher for permission, much less paying me for the privilege. I even found a site that had translated the article into German, again without permission or payment. (Flattering, yes, but I would have appreciated some sort of royalty check to go with the flush of achievement in having my little article translated into another language for an entirely new audience.) I’m sure some of the designers/developers reading this article have been floored to find someone has ripped off their designs or their code in one form or another. And ripping off Web content is so common that it’s been given its own nickname — “scraping” — and is its own quasi-legal cottage industry.

Acknowledging the basic facts: once content, be it code, articles, or your Aunt Dimples’s recipe for turducken, is on the Internet, it’s there for the taking, and by the time you’ve worked up a good sense of righteous indignation at the idea of someone stealing your work, someone has probably already stolen it. The question is, how far do you want to go to stop this from happening? And, can even the most draconian measures absolutely prevent content from being pilfered?

Home Cooking in Congress

SOPA was proposed by Representative Lamar Smith (R-UT) back in October 2011. It has 31 House sponsors, from conservatives like Smith, Marsha Blackburn (R-TN), and Peter King (R-NY) to progressives like John Conyers (D-MI) and Debbie Wasserman Schultz (D-FL). As I type this, the bill, which was originally fast-tracked for passage before the end of the year, sits in the House Judiciary Committee. A similar bill, PIPA (Protect IP Act, or more fully, the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act), was introduced in the Senate by Patrick Leahy (D-VT) and is being pushed through by, among others, Majority Leader Harry Reid (D-NV) and Al Franken (D-MN). Another Senate Democrat, Ron Wyden (D-OR) is promising to filibuster the bill, so if Wyden goes through with his threat, Reid and his allies in the Senate will have to find 60 votes to ensure passage; Reid now has some 40 votes on his side. Like SOPA in the House, PIPA has bipartisan support, with progressives such as Leahy, Barbara Boxer (D-CA), Sherrod Brown (D-OH), and Sheldon Whitehouse (D-CT) joined by conservatives like Lamar Alexander (R-TN), John McCain (R-AZ), and David Vitter (R-LA).

For those of you who aren’t C-SPAN junkies, trust me, both parties have some heavy hitters lined up on behalf of these two bills.

Even former Senator Chris Dodd (D-CT), who fought a lonely rearguard action against the successful attempts by Congress to give its blessing to the government’s warrantless wiretapping program in 2008, is for the legislation, saying that “the online theft industry relies on advertisers, payment processors, Internet service providers, and search engines — legitimate businesses that in my view debase themselves when they knowingly act as accomplices to digital theft. They are acting as accessories in the theft. We need to spread the message in the digital community and in the entertainment community that these activities hurt working Americans — and that we will not tolerate them.” Maybe Dodd’s support for the legislation has something to do with the fact that he is president and CEO of the Motion Picture Association of America (MPAA), one of the most powerful supporters of the bill. Since becoming head of the MPAA, Dodd has said he sees some value in the draconian way the Chinese government censors Internet access to its citizens.

SOPA is a reboot of 2008’s PRO-IP Act, and PIPA is a reboot of 2010’s COICA, the Combating Online Infringement and Counterfeits Act. Both bills failed to pass. The new bills are retooled, with some language softening to draw less alarm than their more overtly restrictive predecessors, but the new language is pure marketing — the intent and content of the new bills is the same as the old. Internet founder Dr. Tim Berners-Lee spoke out strongly against CAICA. CNet’s Declan McCullough called the PRO-IP Act the death penalty for Websites. And a posse of law professors called the PRO-IP act unconstitutional.

The bills are being challenged in both houses by a near-identical brace of legislative proposals, both entitled OPEN (Online Protection and Enforcement Digital Trade Act). OPEN, sponsored in the House by Darrell Issa (R-CA) and Zoe Lofgren (D-CA) and in the Senate by Jerry Moran (R-KS) and Maria Cantwell (D-WA), is supported by technology companies such as Google, Twitter, Yahoo!, LinkedIn, and Facebook. OPEN is considered far less intrusive than SOPA/PIPA, and would protect Internet content without causing what Wyden terms the “collateral damage” from SOPA/PIPA.

Libertarian and Presidential candidate Ron Paul (R-TX) has stated his opposition to SOPA, as has House Minority Leader Nancy Pelosi (D-CA), for what those are worth. The Obama administration has not taken a strong public stance either way, though officially it supports SOPA/PIPA. Behind the scenes, administration official Victoria Espinel worked with entertainment industry officials to help construct the legislation, and administration officials told reporters that Espinel was doing “precisely the work outlined in the administration’s 2010 Joint Strategic Plan on Intellectual Property Enforcement.”

An infographic by KeepTheWebOpen.com shows the critical differences between the two bills. Both would protect the rights of artists and apply due process to infringement claims, but OPEN would, in addition, protect against new Internet police powers, secure “safe harbors” for legitimate Internet businesses, protect social media, make sure technology experts weigh in on intellectual property disputes, target foreign-based rogue Websites, support technological innovation, and keep the law consistent with America”s calls for open Internet access in closed societies.

Popular conservative senator Mario Rubio opposes SOPA, but is a co-sponsor of PIPA in the Senate, so Rubio has to be classified as “having it both ways.”

How focused is the support in Congress? Well, in November 2011, the House Judiciary Committee held a combined hearing and markup session on SOPA. Five proponents of the bill were invited to speak. One, count ‘em one, opponent, Google lawyer Katherine Oyama, was invited to speak, and apparently she spent much of her time defending Google and other tech firms from accusations that they were raking in billions from online piracy. Smith accused Oyama, Google, and other opponents of the bill of trying to “obstruct the Committee’s consideration of bipartisan legislation” by opposing it. Not sure when opposition became obstruction …

During the session, the committee was informed of serious concerns over the bill from the likes of Vint Cerf, one of the true “fathers of the Internet.” The response can be summed up in the words of one committee member: “I”m no technology nerd, but I don’t believe it.” Wow. Let’s just look at that for a moment. Let’s say I take my car to Joe’s Drag-em-In and Drive-em-Out Car Repair Shoppe. “It’s making a terrible blangy-whangy sound when I put it in gear,” I tell Joe, “and I’m afraid to drive it.” Joe pulls the soggy cigar out of his mouth, squints at the car for a moment, and says, “Shucks, I ain’t no car expert, but I don’t believe it. Drive ’er out of here, boy.” I will indeed drive ’er out of there, straight to someone who actually knows what they’re doing. He won’t be making any decisions about my car. And we’re letting the equivalent of Cigar Joe make this decision for us?

Interestingly, the streaming video provided by the Judiciary Committee to the public was of such poor quality that it was virtually useless. Martyn Griffen of the civil liberties group Public Knowledge tweeted: “#SOPA Hearing internet still fading in and out. It’d be great if an internet engineer could fix the website issue in return for testifying.”

Last night I had a horrifying dream that a group of well-intentioned middle-aged people who could not distinguish between a domain name and an IP address were trying to regulate the Internet. Then I woke up and the Judiciary Committee’s SOPA hearing markup was on. — Alexandra Petri

How dead set is Washington in favor of intellectual property rights as opposed to civil liberties? In May 2011, Leahy tanked a bill that would have required the government to get a warrant to look at our email and other online content. Instead, he hustled what would become PIPA through the process. Few on either side of the aisle complained. Cindy Cohn of the Electronic Frontier Foundation says: “Any civil liberties agenda was a complete non-starter with Congress and the Obama administration. They had no interest in finding any balance in civil liberties.” There is a government entity that might have objected to the SOPA/PIPA legislation, the Privacy and Civil Liberties Oversight Board, but it hasn’t been staffed since 2008, and the board members appointed by Obama to serve in November 2011 still await Senate confirmation. The board’s Website fails to resolve.

The most recent news is that Reid, as Senate Majority Leader, intends to schedule a vote on PIPA as soon as possible after Congress reconvenes in late January. The debate on the issue is scheduled for the 24th and the vote as soon after as Reid can make it.

SOPA/PIPA: A Two-Minute Primer

Without going into too much legislative hoohah, the bills would allow copyright holders and the Justice Department (DoJ) to have a court take action against Websites accused of copyright infringement. Even without a court’s involvement, online advertising networks and payment facilitators such as PayPal could be forced to stop doing business with the site, search engines could be forced to remove the sites from its listings, and ISPs could be forced to stop hosting those sites. Unauthorized streaming of copyrighted content would be a crime punishable by up to five years in prison. Internet services that take voluntary action against “criminal” Websites would receive immunity from prosecution; on the other hand, a site that conceals its infringement would be liable for prosecution. Critics hate the bills, pointing out that anyone who had a beef with a Website owner could file frivolous “infringement” charges that would essentially shut the sites down without legal recourse. Sites that depend on user-generated content, such as Twitter, YouTube, and Flickr, could easily be forced off the Internet. New Web-based services would find it difficult to gain acceptance because of interference by copyright holders. And the bills would encourage censorship of legitimate Websites and their content. While the State Department wants increased Internet freedom abroad, critics say, these bills would drastically curb it in the US. David Sohn of the Center for Democracy and Technology says: “This is a bill that would eviscerate the predictable legal environment created by the DMCA, subjecting online innovators to a new era of uncertainty and risk. It would force pervasive scrutiny and surveillance of Internet users’ online activities. It would chill the growth of social media and conscript every online platform into a new role as content police.” SOPA even provides for making streaming video at home a felony if the videos are copyrighted, and would make it illegal for libraries to make a wealth of copyrighted material available to users.

Nobody’s responsible. A website is taken down, there are robust First Amendment standards that should prevent it from being taken down, and it gets taken down anyway. Well, who’s responsible? No one. — Christopher Sprigman, University of Virginia Law School

Those of us familiar with the Digital Millennium Copyright Act, or DMCA, know about that law’s “takedown” procedure, wherein a copyright holder can write a letter — a “takedown notice” — to a site’s rightsholder demanding that a copyrighted work be removed. The content is removed unless the rightsholder objects; then the copyright holder decides whether or not it’s worth going to court over. No one has ever said the DMCA is perfect, and I well remember the controversy over that law’s passage. But SOPA/PIPA raises the stakes much further. As Nate Anderson of ArsTechnica notes, the DCMA makes some assumption that the rightsholder (or in the view of the SOPA/PIPA advocates, the “predator”) might be innocent of wrongdoing. Either the material isn’t copyrighted, as the copyright holder (or the “wailing jobless victim”) asserts, or the evil slobbering perp made an innocent mistake that he’s willing to correct. But under SOPA/PIPA, the violatee can, without fear of legal intervention, have the entire site vaporized by attacking its marketing and revenue. “So long as the intellectual property holders include some ‘specific facts’ supporting their infringement claim,” Anderson writes, “ad networks and payment processors will have five days to cut off contact with the website in question.” SOPA/PIPA proponents insist that the law will only apply to foreign Website owners who thumb their hairy noses at US law. But the law doesn’t make that distinction. I remember not too many years back when the government made the same assertion about warrantless wiretapping of telephone and email communications. They lied then, too.

Who Supports SOPA/PIPA?

Lined up on behalf of SOPA are such organizations and companies as the Motion Picture Association of America (MPAA), the U.S. Chamber of Commerce, the Better Business Bureau, the National Consumers League, 43 state attorneys general, the National Fraternal Order of Police, the Independent Film and Television Alliance, the American Federation of Musicians, the Directors Guild of America, the AFL-CIO, the International Brotherhood of Teamsters, the Screen Actors Guild, Disney and its subsidiary Marvel Comics, Time Warner and its subsidiary DC Comics. A list of SOPA/PIPA supporters can be found here. (If you hate Scribd documents as much as I do, you can also view the list here.)

Who Opposes It?

In opposition: the editorial boards of the Los Angeles Times, the New York Times, the Orange County Register, and the San Jose Mercury News; a host of Silicon Valley venture capitalists including Marc Andreessen; technology companies such as AOL, eBay, Etsy, Facebook, foursquare, Google, LinkedIn, Mozilla, PayPal, Reddit, TechDirt, Tumblr, Twitter, the Wikimedia Foundation, and Yahoo!; and civil liberties, human rights, and advocacy organizations such as the American Civil Liberties Union, the American Library Association, Americans for Job Security, the Center for Democracy and Technology, the Computer and Communications Industry Association, the Consumer Electronics Association, the Consumers UnionDemand Progress, the Electronic Frontier Foundation, Free Press, the Cato Institute, the Heritage Foundation, Human Rights Watch, the Internet Society (ISOC), MoveOn, the New America Foundation, Public Knowledge, and the Tea Party Patriots, among others. For one of the only times in Internet history, left-leaning blogs such as the Daily Kos, AmericaBlog, and FireDogLake are joined by rightward blogs such as HotAir, Little Green Footballs, and RedState in opposing the bills. A full (and growing) list of opponents can be found here. It took time for journalistic organizations to make a call, but recently the American Society of News Editors and the Online News Association have joined the opposition. In an open letter, ASNE wrote that SOPA “would violate the constitutional rights of free speech and due process, and stifle innovation in the news business …” Moreover, SOPA would inhibit the “free aggregation of content that has become central to online journalism.”

Game companies such as Sony, Nintendo, and Electronic Arts have officially withdrawn their once-vocal support of SOPA/PIPA due to all the negative publicity being given the legislation, but as game site Voodoo Extreme notes, all three firms are still members of the Entertainment Software Association (ESA), and that organization has not withdrawn its support. Voodoo Extreme writes that the gaming firms are de facto “silent supporters” of the legislation.

(Apparently the technology firms aren’t yelling loudly enough for at least one senator. As of December 15, Dianne Feinstein (D-CA) seemed to think that the tech companies are behind the bill, telling reporter Zach Carter that she doesn’t see a divide between Silicon Valley and Hollywood. Carter speculates that “[t]he response seems incredible given the outcry from Silicon Valley, and Google in particular, but the complexity of the legislation has left many lawmakers vulnerable to K Street spin.”)

Microsoft: Having It Both Ways?

Microsoft has withdrawn its support for SOPA, but still supports PIPA. The Next Web’s Alex Wilhelm writes that “Microsoft, by supporting the PROTECT IP Act, is effectively saying that it is not against SOPA at all, as it is in favor of its twin.” He calls Microsoft’s withdrawal of support for SOPA a “canard.”

It’s not a good thing. I understand the goal of what SOPA and PIPA are trying to do. Their goal is reasonable, but the mechanism is terrible. They should not criminalize the intermediaries. They should go after the people that are violating the law. — Eric Schmidt, chairman of Google

Learning More about the Bills

Mashable has a a nifty, detailed infographic for the visual learners among us. American Censorship also has a well-done infographic. And for the video generation, there are YouTube videos, from a more leftist viewpoint and from the right.

You can learn a bit more about online piracy from an infographic released in 2009 by the MPAA. Ironically, it doesn’t exist any longer on the MPAA’s site, but it’s accessible at the Internet Archive — one of the Internet resources threatened by SOPA/PIPA.

These bills aren’t simply unconstitutional, they are anticonstitutional. … Honestly, if a friend wrote these into a piece of fiction about government oversight gone amok, I’d have to tell them that they were too one-dimensional, too obviously anticonstitutional. — Adam Savage of Mythbusters and Popular Mechanics

Anyone voting in favor of it is morally responsible for destroying the freedoms, innovation, hard work and aspirations of many. — Tamer Rizk of Inficron

Ratcheting Up the Fear Level

The proponents of SOPA/PIPA (does anyone else think of honeyed Mexican desserts over this acronym?) tell us that we’re not safe without this legislation. In an article for a Nashville songwriters’ blog, Blackburn, one of the House co-sponsors of SOPA, tells us that we’re in the same position as the homeowner whose house is invaded by gangstas who steal our most prized possessions: cyber piracy is just like “a gangster break[ing] into your home and steal[ing] your jewelry,” Blackburn writes. Eeek! “Dedicated cyber criminals exploit America’s greatest asset,” she continues, “its creative power — without recourse. [J]obs, small businesses, and US exports are forced to walk the plank and drown in a sea of cyber-lawlessness. Innovation is slashed. Rule of law is burned. American creativity goes without reward. The economy suffers.” Blackburn evokes a truly post-apocalyptic vision of America going down the economic toilet while Crips and Bloods (and presumably terrorists and Chinese bureaucrats) dance in the ashes. Only SOPA and its honey-fried cousin PIPA can save us from this Mad Max future, she warns us. I don’t know about you, but when legislators of any party start telling us that only This Bill can save us from smoking, Terminator-infested wastelands, I tend to tread cautiously and keep a hand on my wallet.

Blackburn also trots out the old conservative boogeyman of a Vast Liberal Conspiracy Working to Make Us Unsafe. “Critics, including left-wing special interest groups like the ACLU, Demand Progress, and Public Knowledge, have resorted to desperate arguments that attempt to challenge the bill’s constitutionality,” she writes. “They allege enforcing against illegal activity will break the Internet.” She doesn’t acknowledge that many of her “left-wing” colleagues in Congress are lining up with her to support SOPA/PIPA, and fails to tell her readers that many defenders of civil liberties on the right are against her (including the Heritage Foundation, the Cato Institute, and the Tea Party Patriots, few of whose members hang out at socialist coffee shops). This is not a left-right issue, though I’m sure her polemic will help energize some of what both sides demurely call the “low-information” voters who depend on people like Blackburn to tell them what to vote for and what to oppose.

I love Marsha Blackburn. She is a delightful lady and a solidly conservative member of Congress. And I am pledging right now that I will do everything in my power to defeat her in her 2012 re-election bid. I wonder if the left feels that way about Debbie Wasserman Schultz? — Erick Erickson of RedState

And as a veteran of too many bill-watching and liveblogging legislative sessions, I’ve grown very, very leery of bipartisan support for bills, especially those that purport to “save” us from some nebulous threat but instead threaten our freedoms. Bills with strong bipartisan support are usually either innocuous little things (“We the US Senate come out strongly in favor of apple pie and puppies!”) or take heavy whacks at the rights of ordinary Americans while benefiting the wealthy individuals and corporations who keep Congresscritters lolling in power and privilege. There are all too few actual defenders of America’s civil liberties in either house of Congress, or in either of the other branches of government, and far too many people with the will to sell our freedoms for either the illusion of “safety” or the reality of corporate favors. I remember all too well the recent dustup over the NSA’s warrantless wiretapping program. That ended with a whimper when Democrats and Republicans joined together to grant retroactive immunity to the telecommunications industry and give the government almost-complete power to listen to our telephone conversations, read our email, and peruse our Web browsing habits. I fear the same thing with SOPA/PIPA. Like the illegal wiretapping program, the SOPA/PIPA situation is a combination of the worst of the Republicans’ “bully state” and the Democrats’ “nanny state” approaches to governance.

Blackburn is joined by the fine minds at Creative America, a “grassroots organization” sponsored by major motion picture, television, and recording labels, networks, and industry labor unions (the proper term is astroturf organization), who in early December 2011 released a brace of scare videos full of frightening, if misleading and sketchily sourced, allegations — “rogue” online piracy costs millions of American jobs, lawless foreign pharmaceutical suppliers sell phony prescription drugs made with toxic materials without legal consequences whatsoever, and so forth. The solution: pass SOPA/PIPA before we all lose our jobs and die.

Oddly enough, aside from Blackburn’s screed, I couldn’t find a lot of editorials, columns, and such in support of SOPA. I did find a piece by Reuters’ Felix Salmon, who had similar problems (and he has access to Lexis/Nexis!). “Everybody I know, and everything I’ve come across on the internet, falls into one of two categories: either they’re vehemently opposed to SOPA, or else they simply don’t know about it,” he writes. “[D]oes SOPA actually have any popular support? Are there any real outside-the-beltway people who think it’s a good idea? If so, where are they? And if not, how did Congress become so bad at reflecting popular opinion?” One commenter, author Michael Crook, linked to his blog post where he explains why he supports SOPA, but most of his post is either flat refutations with no evidence (“SOPA will not ‘break the Internet,’ but will make it safer for copyright holders, which is all that counts”) or insults (“users of the fringe lunatic site Reddit,” “militant ne’er-do-wells,” “precious, whiny, over-entitled, hippie-era voices,” and my personal favorite, “The only people who are upset about SOPA are those who seek to steal others’ content and generally engage in electronic forms of theft. Why else would anyone oppose such a beautiful bill?”) Crook concludes: “When it comes down to it, the entire Internet could be taken offline, and it would be just fine. We survived before the Internet, and we can survive without it, if that’s what it takes to protect copyrights.” Not sure how much support Crook will garner with his post. (Don’t bother storming his site to congratulate him on his stance. He writes at the bottom of his blog: “Comments are not allowed on this blog, because this is my avenue of free speech, not anyone else’s.” So there.) In recent days, Crook has launched a Web site, Support SOPA!, where he reiterates and expands on much of the rhetoric on his blog. Crook’s vociferous support may have been triggered by his previous apparent misuse of the DMCA “takedown notices”, which, along with the lawsuits and Internet mockery that followed, may have precipitated his current intransigence.

Market-Based Blacklists

SOPA legalizes mafia-like extortion by media companies, without going through the courts. Instead of suing the infringing website, SOPA pushes liability onto third parties and allows media companies to go after payment processors, advertising networks, internet service providers, and web hosts without having to make legal challenges against the ‘infringing’ website. — Brandon Smietana, CEO of Symbolic Analytics

Basically, the bill will be no good at stopping piracy — what it was apparently designed to do — but excellent at censoring any web site capable of providing its users with the means of promoting pirated content or allowing the process. — Lifehacker

The US Chamber of Commerce has joined Blackburn in reviling those who oppose SOPA/PIPA. Those hooligans are using “scare tactics” to frighten decent, hard-working Americans away from supporting the bill, the organization argues. The “anti-IP crowd” is trotting out “all their favorite ghouls and hobgoblins” (what, no gangstas kicking down our doors?) in opposition of SOPA. One opponent, Demand Progress, says the legislation includes what amounts to an “Internet blacklist.” Gee, the USCoC says, they can’t find the word “blacklist” in the legislation anywhere. Unfortunately, as the Electronic Frontier Foundation (EFF) points out, while the current legislation doesn’t use the word “blacklist” (the original PIPA language did contain a Blacklist Provision, but that part was given a facelift), the concept is strong in both bills. The DoJ can, if it wishes, seek court orders to “force search engines, DNS providers, servers, payment processors, and advertisers to stop doing business with allegedly infringing websites.” Even worse, using what SOPA calls the “market based” provisions of the legislation (i.e. no pesky courts and lawyers and stuff), private corporations are encouraged “to create a literal target list — a process that is ripe for abuse.” An IP rightsholder can independently demand that Visa, MasterCard, PayPal, and other payment processors cut off all payments to a Website within five days. The rightsholder isn’t required to notify the targeted Website. It’s not hard to envision a Website learning that a rightsholder has filed a notice against it only after the money it is owed stops flowing in. Bankruptcy first, legal niceties later. And payment processors can cut off Websites voluntarily, without even receiving a notice, as long as they have what the law calls a “reasonable belief” that the site might be violating someone’s copyright. EFF writes: “[W]onder how long it will take big media to publicly post a list of allegedly infringing sites, and start pressuring payment processors to cut them off? As long the payment processors are willing to comply, the rightsholders can essentially censor anyone they see fit. Even well-meaning payment processors might do this to avoid liability down the road. The potential for rampant abuse is obvious — whether it’s a frivolous claim that wouldn’t withstand the scrutiny of the official process or an attempt to put an emerging competitor at an extreme disadvantage.”

Some Internet activists warn that hosting companies could drastically revamp their business model: instead of waiting for someone to ask that a site be shut down, they could monitor Web traffic (for a fee, naturally), and take down sites that seem to be infringing without even waiting to be asked.

Leslie Harris of the Center for Democracy and Technology makes a cogent point touched on by Ars Technica’s Nate Anderson above. Any site that hosts user-generated content (that includes the comments on your blog) agrees under current digital copyright law to take corrective action when notified that a user has posted copyrighted material. As long as the material is removed or other corrective action is taken promptly, the site is provided a “safe harbor” from liability stemming from copyright infringement. I see this on a political blog that I frequent on a regular basis: some yahoo posts an entire article from, say, the New York Times, and within minutes commenters are complaining about the infringement and alerting someone with admin privileges to the problem. If the poster doesn’t cut the post down to an acceptable level, the post is either edited by admins or removed entirely, usually within an hour or two. This is SOP at hundreds of thousands of blogs and other sites around the world (including YouTube, which is always removing the music vids I want to listen to). However, SOPA would crush the “safe harbor” provision by immediately declaring sites that may have infringed content as outlaw — “dedicated to theft,” in the bill’s parlance. Any site, including yours, mine, or the Queen’s, can be labeled as “dedicated to theft” if it either “facilitates” or “avoids confirming” infringing acts by users. Someone at some point, Harris notes, is going to post something questionable on your site. At that point, you’re an outlaw and your site is toast, no matter how insignificant the infringement or how fallacious the allegation, and no matter what your track record of removing infringing material may be. And as noted above, this doesn’t even need the involvement of the authorities — some other yahoo can file a complaint and bam! your site is blacklisted.

Side note: if you’re reading this, you know it’s quite easy to get around a DNS block. Just ram the numeric IP address in and you’re at StealMeSomeContent.com. There are plenty of software and browser addons that will do this for you, and you can just twiddle your HOSTS file if you have a smidgen of tech savvy. But do most users know this? And will those sites be able to stay up when 95% of its user base gets too frustrated to type in the standard URL and finds their bookmarks no longer work?

The proposed “blacklist” system is entirely skewed in the favor of the supposedly aggrieved party. The “perpetrator” gets no legal recourse even if the complaint against it is entirely false. The entire site is shut down, payments blocked, and IP providers scared away, all without any hint of due process or legal rejoinder. Sure, the “perp” might manage to get a lawyer to fight through the allegations and get his site back up and his business up and running again — weeks or months later, if at all.

A List Apart’s Jeffrey Zeldman gives a horrific, and perfectly plausible example. I’ll boil it down a little. Recently, NPR was one of many media outlets to cover the copyright dispute between artist Shepard Fairey and the Associated Press. Like many media outlets, NPR included a JPG of Fairey’s “HOPE” poster which the AP said was illicitly based on one of its photographs. The article also cited Fairey’s “fair use” defense. Under SOPA/PIPA, the AP could ask for, and be granted, a block on NPR’s entire Website. And it only starts there. You blog about the story and use a screen capture. SOPA gets your entire site blocked. Use a Tumblr or Wordpress domain? All of Tumblr or Wordpress can be blocked. Seriously. Did you link to the story on your Facebook account? Facebook is now blocked — unless it wants to pay its employees to constantly police the copyright status of every damn thing its members post or link to. If Google or Bing index the NPR story, SOPA/PIPA gets those search engines shut down, unless they do what Facebook is now having to do and police the copyright ownership of everything they index. Hosting companies and ISPs? They also get to police everything they host, or they lose their ability to host. Just as an aside, you can kiss the Internet Archive Wayback Machine and Wikipedia goodbye — too much copyright-protected content on those two sites to even worry about policing. (Jay Walsh, the head of communications for Wikimedia, calls them “Internet blacklist bills,” and writes, “If approved, [they] would have disastrous effects for Wikipedia and its sister projects.”)

In other words, the Internet as we know it is gone. Instead, we get a heavily policed, safe-for-content-providers milieu chock full of pre-approved, duly licensed marketing content and precious little else. Goodbye, Internet, hello Home Shopping Network.

David Rusenko, co-founder of Weebly, tells a chilling cautionary tale of what life under SOPA/PIPA would be like. In 2006, Rusenko registered weebly.com with Go Daddy, a huge registrar and one Rusenko considered “a decent place to house your domain.” Three years later, Rusenko learned that Go Daddy had just removed all the DNS entries from weebly.com because of a single anonymous complaint. Go Daddy's abuse department informed Rusenko that someone had complained about the content on a single Weebly site and thusly, by Go Daddy policy, weebly.com was going down. Rusenko only learned of the decision to take the site down after the fact. Turns out a local business didn’t like a bad review posted on a Weebly site, and complained to the registrar. “Why on earth would a domain registrar take it upon themselves to police content?” Rusenko asks. Rusenko managed to get the DNS change reversed before the site, and all its hundreds of thousands of affiliates, could go down. The next day, Rusenko writes, Weebly transferred all of its domains from Go Daddy to another registrar, “to a registrar that actually cares about their customers.” Rusenko now writes, “This will be the future of the Internet if SOPA passes. A place where a complaint ‘in good faith’ is all that is needed to take down millions of small businesses. This ‘shoot first’ mentality, at the DNS level, is utterly destructive. The ‘trial’ and sentencing is performed by indifferent corporations who don’t care about the collateral damage they cause. When they do cause damage, they plead ignorance or incompetence, and enforce double standards … Unless this is the future you would like to live in, SOPA must be stopped.”

Alec Macgillivray, the general counsel for Twitter and a former Google attorney, has another beautifully terrifying example of what could happen under SOPA/PIPA on his blog, this one focused on a hypothetical teacher and father, “Abe,” who keeps family photos online, puts class-related streaming audio and video on a storage site, blogs regularly, and is a well-respected forum member. “He has never infringed on any copyright and each of the entities charged with enforcing SOPA know that he hasn’t,” Macgillivray writes. Yet under the new law, “every single one of the services that Abe uses can be obliterated from his view without him having any remedy. … [I]n every case, he has absolutely no power to try to regain access.” Read it for yourself and share it around.

Not all of Hollywood supports SOPA/PIPA. Actor Ashton Kutcher writes on his blog: “At its core SOPA unwillingly recruits Internet industry companies like social networks, ISP’s and search engines to become policing agents and legally liable for it’s [sic] users content. Forcing social media sites and ISP’s responsible for users content is amazingly burdensome and costly. SOPA will create economic problems for Internet start-ups which will be an additional negative side effect. This may cause a slow down in the Internet economic sector, which is providing real jobs and innovation for the US economy. … It is a disastrous precedent to have Congress legislate Internet DNS control. Placing search engines and ISP’s in the middle of policing for piracy is plain and simply a bad and confused attempt by well meaning people that fundamentally don’t understand how the the Internet works.”

The virtual certainty [is] that it will result in the ancillary blocking of much legitimate free speech, and [will damage] the basic architecture of the open Internet. One point I haven’t seen pressed forcefully enough thus far, however, is that architectural and free speech concerns are not entirely independent. The practical effect of SOPA will be to create an architecture for censorship — both legal and technological — that will radically alter the costs of engaging in future censorship unrelated to piracy or counterfeiting. — Julian Sanchez of the Cato Institute

Speaking personally, every for-sale creative product I’ve helped develop in the past two decades has reached appreciative paying customers through authorized sales channels, from tiny PayPal-powered sites to mighty Amazon and chain stores. But pirated copies have also been readily available on law-flaunting websites, and there are always people who will download free stuff even when they know it’s wrong. I always think people who steal stuff weren’t my customers anyway, but not everyone can take that point of view, and it’s reasonable to wish there was some way to stop the illegal distribution of content. Wishes are one thing, laws are another. If there is a way to stop piracy (and I think we’d have more luck legislating an end to adultery or overeating), SOPA is not it. — Jeffrey Zeldman

Jobs at Risk?

The same USCoC press release claims “19 million jobs” are at risk “put at risk by illegal, dangerous products offered by foreign rogue sites that disguise themselves as legitimate online vendors.” How exactly these “rogue sites” steal jobs is not clear, and the USCoC doesn’t bother to explain where it came up with the “19 million” figure. Representative Conyers did tell folks that “[m]illions of American jobs hang in the balance,” though he also neglected to say just how those millions of jobs are threatened. Same in the Senate, where Al Franken noted with only limited relevance, “IP-reliant companies account for more than $7.7 trillion of the United States economy and employ more than 19 million workers.” Scare tactics, indeed. (It’s possible that the USCoC drew its figures in part from recent Congressional testimony by MMPA’s Michael O’Leary, who cited the more than 2 million jobs the motion picture and television industry creates in the fifty states, and implied that every one of those jobs was at dire risk from online piracy and copyright infringement. There’s a big difference between 2 million and 19 million, naturally, and it’s difficult to see how every last one of those 2 million jobs would be vaporized by those copyright-infringing degenerates.)

The EFF stands the claim on its ear, saying that passage of SOPA/PIPA would, by discouraging new technologies, cripple “the YouTubes of tomorrow that are generating jobs today.” Daniel Castro of the Information Technology and Innovation Foundation agrees, telling a reporter: “The U.S. is the leading producer of creative content. Rampant infringement of digital copyrights hurts workers and businesses in America more than in any other country.”

I’m not the only one puzzled by the “19 million” job loss claim. TruthOut’s Dean Baker says the claim may be “the most outrageous misrepresentation of economic reality ever to appear in a Washington policy debate.” Baker clarifies: “The basic story is that if an industry is in any way directly or indirectly dependent on the output of a copyright protected industry, then the jobs in that industry will be put at risk if Congress doesn’t approve the SOPA. By this methodology, all the jobs in the shipping industry will be at risk if we end the tax credit for solar power, since some of the materials used in solar panels are imported.” Take that, Stuart Smalley.

Another figure much bandied about is the “fact” that 24% of Internet content is pirated. That overwhelming amount of pirated content, people say, is one reason why so many jobs are threatened. Unfortunately, that figure is wrong. It comes from a study conducted by the research firm Envisional for NBC/Universal. But according to an analysis by TechDirt's Mike Masnick, the study is badly flawed. Moreover, Masnick states, if there were more readily accessible avenues for people to legally secure content, they would use those instead of using illicit means. “One of the main reasons why people access unauthorized copies is because they can’t get legitimate copies,” he writes. “The movie industry … doesn’t seem to realize that restricting how people can access their movies only drives more and more people to unauthorized means. … [T]here’s a very clear indication that when legal alternatives are available, the amount of unauthorized file sharing drops considerably.”

Dangerous Pharmaceuticals For Sale

The USCoC cites a letter and YouTube video produced by Iowa child care provider Glenda Billerbeck whose friend died when the prescription drugs she bought online turned out to be laced with toxins. “The worst part is that Marcia’s death could have been prevented had the government been given the tools to root out online counterfeiters,” Billerbeck writes. Washington State Attorney General Rob McKenna recently released a statement that said in part: “The sale of counterfeit products and piracy of copyrighted content online not only undermines our nation’s economy [but also] robs state and local governments of much-needed tax revenue and jobs. Even worse, some counterfeit goods can pose serious health and safety hazards to consumers. Rogue sites legislation seeks to clamp down on this scourge.” This is definitely a concern — no one wants people to suffer from buying substandard pharmaceuticals from online sources — but proponents of SOPA/PIPA fail to note that there are already stiff laws in place to go after such substandard providers, if the laws would be used. When the “expert” on online pharmaceuticals — John Clark, a spokesman for pharmaceutical giant Pfizer — testified before Congress, he warned that authorities couldn’t always tell the legitimate pharmaceuticals offered for sale online from the bogus ones. Advocacy group RxRights countered that Canadian and other non-American online pharmaceutical sellers do require valid doctors’ prescriptions, disclose where they are located, and sell only verifiably genuine pharmaceutical goods. Hundreds of thousands of Americans would lose access to less expensive, legitimate pharmaceuticals if SOPA/PIPA goes into effect, the organization writes.

Google is somewhat vulnerable in this area of debate, not because it is deliberately providing substandard pharmaceuticals to buyers, but because it had to pay the DoJ $500 million to settle charges that it accepted ads from companies that sell drugs to American consumers in violation of US law. Aaron Swartz of Reddit observes, “Google’s been great on this, but their reputation has been systematically trashed in Washington by their opponents.” The same body of laws used to pop Google for accepting ads can, and sometimes are, used to pursue those who provide bad pharmaceuticals to innocent buyers. SOPA/PIPA isn’t necessary to keep this from happening.

Congress must abandon ridiculous efforts, such as SOPA, to protect pharmaceutical industry profits at the expense of American consumers under the guise of protecting them from counterfeit drugs. Laws, regulation, and enforcement that make it harder for Americans to afford needed medication threaten the public health because fewer Americans will take their drugs. By continuing to allow Americans to purchase affordable medication from verified non-U.S. online pharmacies the government can act morally, a much better option than obstructing efforts by Americans to acquire the medication they need. — Gabriel Levitt and Margaret Rode of PharmacyChecker.com

Ineffective Solutions

A ham-handed “solution” such as SOPA/PIPA is guaranteed not to work. There are too many ways around it. Let’s say someone decides to get StealMeSomeContent.com shut down. By the next day, the same content is up on StealMeSomeMoreContent.com. Tech experts have workarounds for domain seizures already, and you can bet more will become involved in finding ways around SOPA/PIPA’s heavy hammer. The sites that will suffer the most are the legitimate ones, especially ones that are hosted by ordinary citizens who lack the funds and the legal resources to fight shutdown orders, hosting bans, and payment freezes. Wikileaks has fought for over a year to stay afloat despite a huge US-led effort to crush it, but it has cost the organization most of the funds it has been able to raise and has turned founder Julian Assange into an international outlaw, even though no credible evidence of criminal actions on his part has been advanced. Most sites wouldn’t last a day under such an onslaught. Under SOPA/PIPA, we could all suffer the same treatment as Assange and Wikileaks, and we wouldn’t necessarily be leaking information that a government found embarrassing — we could have just raised the blood pressure of one flunky at one corporate office who didn’t like a comment we made about his firm, or maybe his combover.

Another problem is its attempt to “future-proof” itself through vague and indefinite language. Business consultant Larry Downes writes that it is impossible to regulate technology not yet developed, and that any attempt to do so would be rendered obsolete the moment the technology arrived. “As previous efforts from CAN-SPAM to ECPA and back make clear, you cannot future-proof legislation aimed at specfiic features of emerging technologies.” But, Downes notes, SOPA/PIPA tries to do just that. Besides rendering itself obsolete before it even gets out of the gate, “the intentional vagueness greatly increases the potential for unintended consequences.” In an article for CNet, Downes writes that SOPA/PIPA is another example of legislators attempting to “apply or adapt a vast corpus of industrial-age laws to online behavior, including not only copyright and trademark abuse but also privacy, crime, antitrust, net neutrality, spam, spyware, data retention and data disclosure, geolocation services, pornography, gambling, electronic surveillance, taxation, and patents.”

Dajaz1.com: A Cautionary Tale

Pre-SOPA/PIPA efforts to stop “online piracy” by shutting down sites have already misfired. In November 2010, the Justice Department and the Immigration and Customs Enforcement (ICE, part of Homeland Security) forcibly shut down a number of sites, including several hip-hop blogs, and most notably a small but popular hip-hop site called Dajaz1, apparently for violating laws about hosting pirated content. Turns out the information used to draw up the shutdown warrants was done by a single person, a technically inept fellow who got most of his information wrong. Some of the songs hosted by Dajaz1, and characterized as “pirated,” were posted at the request of the artists to give the music more publicity. No matter, the court found the presentation enough to issue warrants. The feds shut down the sites (in official parlance, “seized” the sites), plastered the sites with large graphics characterizing the sites as criminal enterprises, refused to comment about the cases, and then proceeded to block information about the shutdown to the courts and the sites’ lawyer. The government began forfeiture proceedings against Dajaz1 after denying its lawyer the right to see the “evidence” mounted against the site, and falsely claimed that no one from the site was challenging the forfeiture. After over a year of stalling and refusing to allow the site’s lawyer to see the evidence, or even its court filings, the government finally turned the domain back over to the site owners without comment. TechDirt’s Mike Masnick writes: “This is really quite incredible, considering the ‘rush’ with which it seized these domain names, claiming the urgency in stopping a crime in progress. But, of course, after realizing that it had no evidence to suggest a crime was ever in progress — there was absolutely no urgency to correct the error.” Masnick says, with reason, that the “investigation” into Dajaz1 and other sites was handled like a terrorist investigation. No evidence of the case can be found in public records — apparently the government has decided to make the case disappear, as if it never happened. “This was flat out censorship for no reason, for an entire year, by the US government,” Masnick concludes. “It also shows what a joke the claims of supporters are that since ‘a judge reviewed the affidavit,’ there’s due process.” The government’s ability to undertake this kind of action would only be expanded and reinforced under SOPA/PIPA.

Flatly Unconstitutional

I’m no law professor, nor do I play one on television. However, in an article published by the Stanford Law Review, law professors Mark Lemley, David S. Levine, and David G. Post do the heavy lifting for me. According to the learned professors, the procedures involved in enforcing the SOPA/PIPA mandates are flatly unconstitutional, violating the First Amendment and the “due process” clause of the Constitution. The dodge around the judiciary system is entirely illegal, they state, and cite a Supreme Court decision to back up their opinion. “The procedures outlined in both bills fail this fundamental constitutional test,” they conclude.

If Congress needs to do anything, it should be to investigate the lawless, unconstitutional, cowboy censorship and blocking of due process by both Homeland Security and the Justice Department. The last thing it should be doing is allowing more such actions. — Mike Masnick of TechDirt

Arrant Hypocrisy

The online community has had some dark-humored fun documenting the many, many illegal acts of online piracy by such “predators“ and ”rogues” as Sony, Fox Entertainment, Universal, the RIAA, and the US House of Representatives — all organizations working to pass SOPA/PIPA. The BitTorrent fans at TorrentFreak have been busy documenting online piracy by staffers and employees of the very entities trying to pass draconian legislation outlawing the acts they are currently perpetrating. House staffers (or representatives?) tend to steal a lot of books, television episodes, movies, and entire software platforms such as Windows 7. And porn, lots of porn. TorrentFreak found over 800 IP addresses registered to the US House that have engaged in what SOPA/PIPA would term felonious downloading. Tsk tsk, boys, I’m sure all of you guys will repent of your evil ways as soon as your legislation is passed. Will you purge your hard drives and iPads, too?

At least two Congressional staffers who helped write the legislation are now working for the entertainment industry lobbyists who are fighting for the legislation. In a development that TechDirt’s Mike Masnick calls “shockingly unshocking,” a former staffer for Lamar Smith (R-TX) and another who worked for Republicans on the Senate Judiciary Committee are now working for the MPAA and the National Music Publishers Association (NMPA), respectively. Politico’s Anna Palmer writes: “The departures are a classic example of the revolving door between Capitol Hill and downtown, where the private sector lures well-connected staffers just as a high-stakes legislative battle heats up. The goal is straightforward: leverage the insight, connections and expertise of an insider to tip the scales in their favor.”

But the hypocrisy goes deeper than just the fact that employees are engaging in the activities their employers want to outlaw, or Congressional staffers running to take lucrative jobs for the companies that supported the legislation they helped craft. In many ways, organizations such as the MPAA, the RIAA, and others who are so hot to constrain “online piracy” are responsible for its growth. As Patricio Robles of Econsultancy notes, those organizations and the corporations they represent — movie studios, record labels, and the like — have fought technological advances instead of embracing them and finding new ways to incorporate them into their profit model. Instead of finding a way to make money off of the breakthrough technological advances of digitizing content and near-instantaneous global distribution of that content, the entertainment industry successfully fought to pass DMCA. The law, particularly its definition of "service provider" as someone who needs to adhere to the DMCA’s "takedown" policies, was unable to keep up with the explosion of online user-generated content services. Now the industry says DMCA isn’t strong enough and SOPA/PIPA needs to take its place. “In effect,” Robles writes, “the process becomes a pointless game of whack-a-mole.” Robles is frank in admitting many content providers ignore copyright infringements. They’ve found a way to make DMCA work for them, and have denied copyright holders their due. But SOPA/PIPA goes much farther than giving copyright holders a fair shake: it creates an enormous restriction on how the Internet functions. Robles concludes: “Big Content, supported by its big money, wants a more tightly-controlled internet. And it’s in luck because the bureaucrats who write laws want a more tightly-controlled internet too, albeit for different reasons. That’s bad news for everyone else.” In short, the same entities that helped create the problem now want to pass excruciatingly restrictive legislation to help “solve” the problem.

[T]he bill won’t have any noticeable effect on so-called ‘piracy’. It will just push people who copy into using more and more sophisticated circumvention techniques and technologies. — Karl Fogel of Question Copyright

The Effect on Web Designers and Developers

We all use the web now for all kinds of parts our lives, some trivial, some critical to our life as part of a social world. In the spirit going back to Magna Carta, we require a principle that: No person or organization shall be deprived of their ability to connect to others at will without due process of law, with the presumption of innocence until found guilty. Neither governments nor corporations should be allowed to use disconnection from the Internet as a way of arbitrarily furthering their own aims. — Tim Berners-Lee

These acts are stopping developers from coming up with the next big thing in the online market that could change how we use the internet. Let’s say that these acts were around back when the internet was started, how many of the most popular sites would still have come into fruition[?] There would be no Facebook, YouTube, MediaFire, SoundCloud, Twitter, DropBox, or any other site that can be targeted as a place where online piracy could take place. Is it even possible to think about what the internet would be like without sites like this? — Jamal Jackson

Blocking Innovation

The effect of SOPA/PIPA becoming law would be chilling, if indirect, on Web designers and developers. No one would come to your office or your home to stop you from building that new site, CMS, or killer app. But you might not find it easy to market the thing, or to figure out how to squash the bugs that are preventing it from functioning properly. Many design and development blogs (as would most blogs that don’t focus on Great-Grandmother’s petunia patch) would be at risk of being shut down. The cross-pollination between blogs, designers/developers, and users would be greatly reduced, if not terminated entirely, by fear of “copyright infringement” and the repercussions that would follow. No more posts of nifty code snippets or design inspirations. I don’t know about you guys, but I always end up visiting half a dozen Web design and code blogs during a project to find out why something I’m trying to implement isn’t implementing the way I want it, or how to try something new and spiffy. With SOPA/PIPA in my grill, I might not have those resources any longer.

Dennis Yang of Infochimps seems to agree. “It’s already hard enough to build a legitimate new business as it is, and this would make it much worse,” Yang says. “What’s really scary is we won’t know which productive new businesses won’t get off the ground, because [Hollywood] used this bill to kill them before anybody heard about them.” A group of Silicon Valley venture capitalists write in an open letter to Dodd, “A bill like SOPA creates so much liability that it would be impossible for two engineers in a garage to build the next great startup unless they also had a dozen lawyers sitting with them.”

Michele Marius of ICT Pulse, an information and communications technology expert with a focus on Caribbean IT issues, warns that SOPA/PIPA could be highly restrictive on Web development efforts in that region, also. “[A] considerable number of websites originating and managed in the Caribbean are hosted in the US.” Marius writes. “This means they would be subject to SOPA, if it were passed. More importantly, Caribbean web businesses that might have been inspired by those developed in the US, but catering to needs of the individual countries, the region, and/or the Diaspora, could also find themselves in breach of SOPA, and subject to the penalties stipulated. Hence SOPA could not only hinder content and web development in the region, critical elements to developing an Internet Society, it could also have a negative impact on our tech industry and regional innovation, as there would be the constant and looming threat of prosecution from the US.”

Pushing Design/Development Backwards

Most designers and developers are busting their collective humps to learn how best to integrate social media of any and all kinds into their clients’ sites. This could well come to a crashing halt if SOPA/PIPA has its way. Why bother finding a new and striking way to integrate your client’s Twitter feed into his site if the first chucklehead who posts something questionable on his Twitter account sends your client’s site onto SOPA’s blacklist? You don’t dare enable commenting on his content, because all it takes is one disgruntled customer or fired-up ex-spouse to post something questionable at 4 pm and file a complaint at 4:15. Suddenly the old crank who likes to post on your favorite design site about how stupid interactive sites are, and how he wished the Internet would go back to the halcyon days of 1999 when all sites were static and the only thing interactive about a site was the animated GIFs used on the front page, is going to be in demand again. The years you spent honing your skills in the area of social media integration now make you (or at least your clients) potential criminals. Web developer Michael Wells goes even further, and makes his case with a powerful comparison: “This bill and resolution would effectively bring social networking to a dead halt — Facebook would close their website down, Google would stop offering their services for free, and we would all digress back to a social era of about 10 years ago. Imagine being the owner of a water pipe manufacture[r] (the equivalent of ISP’s and Web Hosts) [and] having to be accountable for every molecule of water that passes through your pipes, regardless of the water company you sold them to. No manufacture[r] would stay in business, and this is what this bill and resolution aims to do with other web hosts and IPs on the internet.”

The Electronic Frontier Foundation (EFF) warns that other aspects of web development could also be affected. Authors or distributors of VPN, proxy, privacy, or anonymization software may have to incorporate some form of what the EFF calls a “censorship mechanism.” Internet security software such as SSH could be targeted for censorship orders because they contain proxy functionality. If you distribute complete (uncensored) zone files for gTLDs, some could argue that you’re helping “online pirates” bypass SOPA restrictions. If you’re interested in writing a client-side DNSSEC resolver that uses multiple servers to find valid signed entries, you may find yourself in conflict with the law.

The EFF also predicts the demise of many free and open-source under SOPA/PIPA restrictions. The organization writes: “Free and open source projects often operate as decentralized, voluntary, international communities. Even if ordered to by a court, these projects would struggle to find volunteers to act as censors to enforce U.S. law, because volunteers usually only perform tasks that they consider constructive. And in the case of larger projects and repositories like Mozilla, to monitor and enforce such court orders against generic functionality could potentially violate licensing obligations and would likely create acrimony, demoralizing and shrinking the communities of contributors and innovators that those projects depend upon.” The Creative Commons agrees, saying that SOPA/PIPA “especially harms the commons …” The costs of maintaining commons-licensed sites would skyrocket, making it impossible for many of those sites (often run on financial shoestrings by people with more passion and commitment than money) to stay in existence.

Jace Richardson’s Synapse Digital Media has released what appears to be a brilliant piece of snark in the form of an RFQ for a “SOPA-compliant” Website. Take a look, or even better, try submitting a request, and see what you think.

The problem is: there are no rules of the web, only the rules of law. And, with a borderless, interconnected network spanning all but about two countries on the planet, there will be fallout far and wide from this bill that threatens to bring online freedom of speech to an end. — Zack Whittaker

Threatening the DNS System

These bills … would allow for the wholesale elimination of entire websites, domain names, and chunks of the DNS (the underlying structure of the whole Internet), based on nothing more than the ‘good faith’ assertion by a single party that the website is infringing on a copyright of the complainant. — Adam Savage of Mythbusters and Popular Mechanics

One thing that designers and developers count on to sell their wares is platform stability. I’m not talking about Internet Explorer’s well-documented obstreporous approach to handling standards-based code or Windows’s propensity to crash when you sneeze, I’m talking about Internet stability. Think you’ll sell a lot of sites or apps if, say, the DNS (domain name system) protocols are disrupted? Representative Dan Lungren (R-CA) says SOPA/PIPA might do just that. An “unintended consequence” of SOPA would be to “undercut the real effort that would practically help us secure the Internet” through DNSSEC. “That’s bothersome to me.“ DNSSEC is designed to protect Web consumers from being gulled by Websites using fake URLS to fool their visitors into thinking they are the real deal. SOPA/PIPA is incompatible with DNSSEC, Lungren says. Recently some SOPA supporters were asked about that very issue at the above-cited House Judiciary Committee hearing. They had to admit that they knew virtually nothing about the DNS protocols or how SOPA might disrupt them, but were quick to reassure listeners that even though they knew nothing of the technological issues behind the legislation, they were sure that SOPA would do nothing to harm the Internet’s internal structure. Unfortunately, five experts who actually know something of what they speak have concluded that SOPA would do just that, possibly causing serious security problems throughout the Net, catching innocent Websites in what they call “collateral damage” from blacklists, and making it far more difficult to implement DNSSEC properly. Lemley, Levine, and Post argue that the laws would have “potentially catastrophic consequences for DNS stability and security.”

Law professor Stewart Baker writes a brief but illuminating piece showing just what damage SOPA/PIPA would do to the DNS system as it exists by thwarting DNSSEC.

Lemley, Levine, and Post show that under PIPA, even non-American domains would be affected: “These [blacklist] orders can be issued even when the domains in question are located outside of the United States and registered in top-level domains (e.g., .fr, .de, or .jp) whose operators are themselves located outside the United States; indeed, some of the bills’ remedial provisions are directed solely at such domains.”

Wells believes that if SOPA/PIPA passes, hosts would more than triple their hosting fees. Higher hosting costs is the rough equivalent of higher gasoline prices — everything else becomes more expensive as a result.

ServInt’s Christian Dawson is the co-founder of the Save Hosting Coalition, a new anti-SOPA/PIPA organization made up of hosting and Internet infrastructure companies. The coalition has delivered letters opposing SOPA and PIPA to the US Congress. Each is signed by 275 Internet industry executives. In a statement, Dawson says, “[W]e need to make sure legislators hear loud and clear that the passage of this legislation would be bad for the American Internet economy, bad for intellectual-property protection, bad for jobs and bad for the country.”

Threatning Educational Use of Technology

A large group of educators has written the House sponsors of SOPA, warning that passage of SOPA/PIPA “would undermine this framework and chill the creation of educational content” and make it impossible for schools who are attempting to use more technologically advanced approaches to education in their classrooms to make use of the resources available to them. “Online services providing innovative educational content or services require the legal certainty and protections defined in the DMCA. The proposed legislation would undermine legal certainty and in turn chill the creation of innovative learning opportunities.”

If this plays out, we risk further balkanizing the Internet and subverting its core values of openness, innovation and free expression. — Leslie Harris

It would be a very tragic thing if in the name of protecting artists, we saw the most important platform of our time become the province of just a few companies deciding what is and isn’t legitimate expression. — Casey Rae-Hunter, deputy director of the Future of Music Coalition

Who Benefits?

Hmmm. Lobbyists for a huge range of corporations and corporate advocacy organizations have spent $185 million and counting on ramming SOPA/PIPA through Congress, far more than the opposition, which has spent some $29 million trying to counter the PR onslaught. A recent CNet story says that Congressional Democrats are flocking to support the bill because their big Hollywood contributors are for it. Republicans may well be following their own contributors, such as the USCoC and other large corporate interests.

Most of the articles discussing the issue cite Hollywood, and particularly the motion picture and recording industries, as two of the biggest movers and shakers behind the legislation. Corynne McSherry of the Electronic Frontier Foundation writes: “In essence, Hollywood is tired of those pesky laws [referring to the DMCA] that help protect innovation, economic growth, and creativity rather than outmoded business models. So they are trying to rewrite the rules, regulate the Internet, and damn the consequences for the rest of us.” This is undoubtedly true. For years, these two industries have worked diligently to retain complete control of every morsel of artistic and technical content generated within their borders, and while they say it’s all for the benefit of the artists, it doesn’t take a genius to see that most of the profits go to the corporate Powers-that-Be and not the artists and their colleagues. I’m old enough to remember when the recording industry tried to push Congress into censoring music (the infamous and much-derided “parental advisory” labels came from that); I also remember the industry finding a way to profit handsomely even when they didn’t get the outcome they wanted. Same with the first video recorders (VCRs, and don’t get me started on VHS vs. Betamax): Hollywood screamed like a kettle full of scalded cats, predicting that video recording would be The End of Hollywood, and then found ways to profit handsomely off of home recordings of movies. (A number of Silicon Valley venture capitalists wrote in an open letter to Dodd: “Every new technology that Hollywood has decried as being terrible has eventually turned out to be a massive boost to Hollywood’s profits and ability to make, promote, and distribute its works. If that’s a ‘fight,’ then it’s an odd one, in which we in the tech community keep providing all of the weapons Hollywood needs to succeed … only to see you frequently aim them at your own foot before finally working out how to use them properly.” And tech writer and Internet freedom advocate Dan Gillmor puts it more bluntly: “They’ve fought every new technology that they couldn’t control.” Me, I’m not willing to give Hollywood, the Chamber of Commerce, or Congress wide censorship and restraint powers in order to protect their corporate profit margins, especially when the same idiots who can’t program their Blackberries are telling me and my peeps how to run their technology.

Harris notes the possible chilling effect SOPA/PIPA could have on international human rights and other such organizations. Social media and similar platforms have played key roles in the so-called “Arab Spring” and other instances of dramatic, often pro-democratic, change in many countries. But this legislation could interfere with the development and dissemination of such tools that make free expression possible. I would note that the same concern could be said for the internal dissent currently simmering within US borders. Whether you like the Occupy or the Tea Party movements (to name just two), they have one thing in common: they organize, orchestrate, reach out, fundraise, and pretty much exist outright on the Internet. Tea party and Occupy activists use Twitter, Facebook, Reddit, Tumblr, Ning, and dozens of other community and connective technologies to make things happen. SOPA/PIPA could put a big fat cramp in those activities. Many activists on all sides of the political discussion say that the Internet, and the Internet’s plethora of social media and outreach tools, makes their activism possible. That could change, taking away a huge avenue for the ordinary American to make his or her voice and concerns heard over the orchestrated, moneyed din of the special interests. The New York Times notes that “YouTube, Twitter and Facebook have played an important role in political movements from Tahrir Square to Zuccotti Park,” and that function would be threatened by SOPA/PIPA.

My wife loves to talk about tightening her tinfoil hat so firmly that she can’t breathe, but I don’t think it requires an aluminum foil fez to wonder if this isn’t another way for the government to exert and expand control over what we say and do. Representative Zoe Lofgren (D-CA), one of the staunchest opponents of the House SOPA bill, agrees, warning in the November Judiciary Committee hearings, “Once the government has the taste of power, the temptation to exert ever greater control over the Internet … will be even greater.” Internet thoughtcrime? I can imagine it, can you?

Standing Up to the Onslaught

While I support their goal of reducing copyright infringement (which I don’t believe these acts would accomplish), I am shocked that our lawmakers would contemplate such measures that would put us on a par with the most oppressive nations in the world. — Google co-founder Sergey Brin

This bill cannot be fixed; it must be killed. — Corynne McSherry, Electronic Frontier Foundation

The standard wisdom is “there’s nothing we can do, those Congressbeasts are bought and paid for and don’t care what we think.” That’s true that they usually don’t care what lowly constituents think, but not always, and especially not in numbers. Issa, Lofgren, Cantwell, and many other opponents of the bill represent tech-heavy districts such as Silicon Valley and Redmond, and are speaking against the bill, not necessarily for personal principle, but because their constituents will make them pay at the polling booth if they defy their will. You have that same power, just not as much of it. Your voice can make a difference, especially if it is one of many.

The initial outcry against SOPA/PIPA prevented the bill from being fast-tracked through Congress in November 2011. But you know how Congress works: if they can’t get something through the door, they’ll slide it in through the window. They’ll also cover a brick in frosting and tell you it’s a cupcake. After the bill was initially derailed, the MPAA’s O’Leary said, “We will come forward with language that will address some of the legitimate concerns” raised by opponents of the bills. My first question would be: “Who voted you into Congress, O‘Leary? You’re a lobbyist and an executive, not an elected official. Who’s this ‘we’ you speak of, you got a mouse in your pocket?” So I’m thinking O‘Leary and his own batch of highly paid elves will be rewriting this legislation, not our hardworking, midnight-oil-burning Congressvarmints. You think old pal Mike has your best interest at heart? Me neither. As Harris observes: “Changing a few details would not be sufficient; this will require major surgery. As drafted, both bills would create a private right of action that would expose social media websites to new lawsuit risks.”

One public success is Go Daddy’s withdrawal of support for SOPA/PIPA after a public outcry and tens of thousands of former clients scrambling to move their domains to some other provider. The Internet's biggest domain hosting company originally proclaimed its support for the legislation, and as a result lost over 72,000 domains the week before Christmas alone, a loss estimated by Techi.com at some half a million dollars annually. Wikipedia’s Jimmy Wales announced on December 26 that Wikipedia will move all of its domain names from Go Daddy. Wikia and the popular Cheezburger network are also ditching the domain host. Go Daddy tried to fence-sit on the issue, but on December 27 issued a statement that read: “Go Daddy does not support the PROTECT IP Act (PIPA). While Go Daddy does believe in the need for protection of intellectual property and personal information on the Internet, it is important to find an approach that works for all users.” For those who aren’t convinced by Go Daddy's apparent change of heart and wish to move their domains from Go Daddy, SitePoint’s Matt Mickiewicz provides a walkthrough along with a prompt to “VOTE WITH [YOUR] DOLLARS and transfer your domain names away from GoDaddy …” Joe Wilcox notes that so far, the Go Daddy departures haven’t hurt the provider much. (Full disclosure: Six Revisions currently uses Go Daddy as its domain provider.)

A number of tech companies and large Internet entities, including Google, Facebook, PayPal, Wikipedia, Twitter, and Amazon, are considering launching an Internet blackout on January 23, the day before the Senate is scheduled to take up debate on PIPA. The idea may have first originated with Wikipedia’s Jimmy Wales; 87% of respondents said “yes” in a Wikipedia poll asking whether the site should “black” itself out in protest of SOPA/PIPA.

Here’s a list of measures you might consider taking:

• Talking to your Congresscritter on the telephone is often the best way to get your message across. This site makes it easy to get their contact information. You probably won’t speak to the actual Congressclown him/herself, but some underpaid intern who, as low dude on the totem pole, has to man the phones while the higher-up staffers play Angry Birds and eat pizza you paid for. Be very, very succinct (“Please instruct Representative Flabgut to vote against SOPA, and here’s why he should do so“ in fifteen seconds or so) and be polite, otherwise the intern will turn your volume down very low, fire up Angry Birds himself, and as soon as he hears that your tinny, angry voice has stopped squeaking at him, will say, “Thank you for contacting Representative Flabgut” and gently press the disconnect button.
• If you’re a US resident, Tumblr has a system that will give you talking points to marshal your reasons why you oppose SOPA, and will then connect you with your House representative.
• Mozilla is also providing a tool that gives users talking points and a connection to their Congressbeastie. The Mozilla site says, “[A]s a non-profit committed to keeping the web open and accessible to all, Mozilla wants to ensure that this legislation does not pass in its current form.”
• The White House allows citizen petitions to be posted on its site, including this one opposing SOPA (which it calls by the lesser-used moniker “the E-Parasite Act”). US and foreign residents alike can sign.
• We missed the American Censorship organization’s Censorship Day, but they also provide contact info for your Congressvarmint. “We want every member to get one call per minute all week long,” they say. Like the Tumblr list, you get talking points and then a connection to your rep’s office. They have lots of other ways to stand up against SOPA, including putting fake “censored” black bars on selected portions of your site.
• Your own rationales and reasonings are always superior to someone’s prefabricated talking points. The Electronic Frontier Foundation has an enormous list of material concerning SOPA. You can read up on the issues surrounding SOPA and come up with your own reasons why it should not pass.
• You can add your name to a petition and Senator Wyden will read your name, along with all the other petition signers, during his filibuster of PIPA on the Senate floor. (If you listen long enough, you’ll hear Wyden read my name, if in fact the filibuster actually takes place.)
• Tamer Rizk of Inficron has released an addon for Firefox, DeSopa, that, according to Rizk, “intercepts URLs, sends the base URL to three offshore DNS services via HTTP, makes a best effort to check that two of them are equivalent, caches the IP for the browser session, redirects to the equivalent URL using the IP, and substitutes out the domain name in the source code with the IP address for future requests.” Not a method of protest or standing up for your rights, but a way to dodge the SOPA DNS bullet if it is indeed ever fired.
• Last resort: a Reddit user cobbled up what he calls a “SOPA emergency list” that consists of the numerical IP addresses of a ton of popular Web sites that might be blocked if SOPA indeed goes into effect. He reminds people that it isn’t necessary to put the list into their HOSTS file yet, it’s just there in case of, well, emergency.
• Spread the ruthless mockery of SOPA/PIPA available at Get Your Censor On. Notorious Internet comic-strip artist David Rees has come out of semi-retirement to produce the material on the site. Warning: NOT family-friendly.

The Internet is probably the most important technological advancement of my lifetime. Its strength lies in its open architecture and its ability to allow a framework where all voices can be heard. Like the printing press before it (which states also tried to regulate, for centuries), it democratizes information, and thus it democratizes power. If we allow Congress to pass these draconian laws, we’ll be joining nations like China and Iran in filtering what we allow people to see, do, and say on the Web. — Adam Savage of Mythbusters and Popular Mechanics

Conclusion

From where I sit, the conclusion is pretty damn obvious: SOPA and its ugly stepbrother PIPA are heinous chunks of poorly considered, greed-driven, backwards-thinking legislation that ignore First Amendment freedoms and would monkeywrench almost everything we’ve taken for granted — and in many cases built careers on — about the Internet. I don’t see how it would stand up for five minutes in a court of law. But then again, I was confident that the Citizens United case was so flagrantly unconstitutional that it would never survive a higher court; instead, the Supreme Court rammed it home and decimated electoral politics as we know it. We can’t afford to take anything for granted in this day and age, and we can never assume that any branch of government is ever going to do the right, or the smart, thing. We can’t depend on enlightened folks in Congress, the White House, or on the bench to make SOPA/PIPA go back to the slime pits. If you agree that SOPA/PIPA is a threat to our freedoms, our livelihoods, and our belovedly wayward and fractious Internet, then you have to do something yourself to stop it. What you do is limited only by your time, your resources, your level of commitment, and your imagination. Step to it, because while you’re reading and cogitating, the other guys are already on the march.

This bill is a direct assault on a free internet and a shameful attempt by copyright lobbyists to destroy net neutrality. Essentially it’s a censorship law that would end the internet as we know it in America. — online petition hosted by the White House

Everybody agrees piracy is a problem — but SOPA is not the way to stop it. — Tina Korbe of HotAir

Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety. — Benjamin Franklin

Don’t make me quote Ben Franklin again. — John Gruber of Daring Fireball