Stop Online Piracy Act
The Stop Online Piracy Act (SOPA) was a proposed United States congressional bill to expand the ability of U.S. law enforcement to combat online copyright infringement and online trafficking in counterfeit goods. Introduced on October 26, 2011, by Representative Lamar Smith (R-TX), provisions included the requesting of court orders to bar advertising networks and payment facilities from conducting business with infringing websites, and search engines from linking to the websites, and court orders requiring Internet service providers to block access to the websites. The proposed law would have expanded existing criminal laws to include unauthorized streaming of copyrighted content, imposing a maximum penalty of five years in prison.
"SOPA" redirects here. For other uses, see Sopa.Long title
"To promote prosperity, creativity, entrepreneurship, and innovation by combating the theft of U.S. property, and for other purposes." —H.R. 3261[1]
SOPA
House Bill 3261
Proponents of the legislation said it would protect the intellectual-property market and corresponding industry, jobs and revenue, and was necessary to bolster enforcement of copyright laws, especially against foreign-owned and operated websites. Claiming flaws in existing laws that do not cover foreign-owned and operated websites, and citing examples of active promotion of rogue websites by U.S. search engines, proponents asserted that stronger enforcement tools were needed. The bill received strong, bipartisan support in the House of Representatives and the Senate. It also received support from the Fraternal Order of Police, the National Governors Association, The National Conference of Legislatures, the U.S. Conference of Mayors, the National Association of Attorneys General, the Chamber of Commerce, the Better Business Bureau, the AFL–CIO and 22 trade unions, and the National Consumers League.[2]
Opponents argued that the proposed legislation threatened free speech and innovation, and enabled law enforcement to block access to entire Internet domains due to infringing content posted on a single blog or webpage. They also stated that SOPA would bypass the "safe harbor" protections from liability presently afforded to websites by the Digital Millennium Copyright Act. The American Library Association and others also claimed that the legislation's emphasis on stronger copyright enforcement would expose libraries to prosecution. Other opponents claimed that requiring search engines to delete domain names violated the First Amendment and could begin a worldwide arms race of unprecedented Internet censorship. Human rights organizations, including Reporters Without Borders, the Electronic Frontier Foundation, the American Civil Liberties Union, and Human Rights Watch also opposed the bill.
The move to protest against SOPA and PIPA was initiated when Fight for the Future organized[3][4] thousands of the most popular websites in the world, including Reddit, Craigslist, and the English Wikipedia, to consider temporarily closing their content and redirecting users to a message opposing the proposed legislation. On January 18, 2012, the English Wikipedia, Google, and an estimated 7,000 other smaller websites ceased standard operation as part of a coordinated service blackout as an attempt to spread awareness and objection to the bill. In many cases, websites replaced the entirety of their main content with facts regarding SOPA and the entity's case against its passing. Boycotts of companies and organizations that support the legislation were organized, along with an opposition rally held in New York City.[5] Google announced the company had collected over 4.5 million signatures opposing the bill in their January petition.[6] Access to websites of several pro-SOPA organizations and companies such as the RIAA, CBS, and others was impeded or blocked with denial-of-service attacks which started on January 19, 2012. Self-proclaimed members of the "hacktivist" group Anonymous claimed responsibility and stated the attacks were a protest of both SOPA and the United States Department of Justice's shutdown of Megaupload on that same day.[7]
Some opponents of the bill support the Online Protection and Enforcement of Digital Trade Act (OPEN) as an alternative.[8][9] On January 20, 2012, House Judiciary Committee Chairman Smith postponed plans to draft the bill: "The committee remains committed to finding a solution to the problem of online piracy that protects American intellectual property and innovation ... The House Judiciary Committee will postpone consideration of the legislation until there is wider agreement on a solution."[10] The bill was effectively dead at that point.[11]
Goals[edit]
Protecting intellectual property of content creators[edit]
According to Rep. Goodlatte, "Intellectual property is one of America's chief job creators and competitive advantages in the global marketplace, yet American inventors, authors, and entrepreneurs have been forced to stand by and watch as their works are stolen by foreign infringers beyond the reach of current U.S. laws. This legislation will update the laws to ensure that the economic incentives our Framers enshrined in the Constitution over 220 years ago—to encourage new writings, research, products, and services—remain effective in the 21st century's global marketplace, which will create more American jobs."[28]
Rights holders see intermediaries—the companies who host, link to, and provide e-commerce around the content—as the only accessible defendants.[29]
Sponsor Rep. John Conyers (D-MI) said, "Millions of American jobs hang in the balance, and our efforts to protect America's intellectual property are critical to our economy's long-term success."[28] Smith added, "The Stop Online Piracy Act helps stop the flow of revenue to rogue websites and ensures that the profits from American innovations go to American innovators."[28]
The Motion Picture Association of America (MPAA) representative who testified before the committee said that the motion picture and film industry supported two million jobs and 95,000 small businesses.[30]
Protection against counterfeit drugs[edit]
Pfizer spokesman John Clark testified that patients could not always detect cleverly-forged websites selling drugs that were either misbranded or simply counterfeit.[31]
RxRights, a consumer-advocacy group, issued a statement saying that Clark failed "to acknowledge that there are Canadian and other international pharmacies that do disclose where they are located, require a valid doctor's prescription and sell safe, brand-name medications produced by the same leading manufacturers as prescription medications sold in the U.S."[32] They had earlier said that SOPA "fails to distinguish between counterfeit and genuine pharmacies" and would prevent American patients from ordering their medications from Canadian pharmacies online.[33]
Bill sponsor Smith accused Google of obstructing the bill, citing its $500 million settlement with the DOJ on charges that it allowed ads from Canadian pharmacies, leading to illegal imports of prescription drugs.[19] Shipment of prescription drugs from foreign pharmacies to customers in the US typically violates the Federal Food, Drug and Cosmetic Act and the Controlled Substances Act.[34]
Impact on websites[edit]
Websites that host user content[edit]
Opponents warned that SOPA could have a negative impact on online communities. Journalist Rebecca MacKinnon argued in an op-ed that making companies liable for users' actions could have a chilling effect on user-generated sites such as YouTube. "The intention is not the same as China's Great Firewall, a nationwide system of Web censorship, but the practical effect could be similar," Mackinnon stated.[44] The Electronic Frontier Foundation (EFF) warned that websites Etsy, Flickr and Vimeo all seemed likely to shut down if the bill became law.[45] Policy analysts for New America Foundation said this legislation would enable law enforcement to take down an entire domain due to something posted on a single blog, arguing, "an entire largely innocent online community could be punished for the actions of a tiny minority".[46]
Additional concerns included the possible impact on common Internet functions such as links from one site to another or accessing data from the cloud. EFF claimed the bill would ban linking to sites deemed offending, even in search results[47] and on services such as Twitter.[48] Christian Dawson, Chief Operating Officer (COO) of Virginia-based hosting company ServInt, predicted that the legislation would lead to many cloud computing and Web hosting services moving out of the US to avoid lawsuits.[49] Even without SOPA, the U.S. Immigration and Customs Enforcement agency (ICE) had already launched extradition proceedings against Richard O'Dwyer in the UK. O'Dwyer hosted the TVShack.net website which had links to material elsewhere and did not host any files. ICE stated that it intends to pursue websites even if their only connection to the USA is a .com or .net web domain.[50]
The Electronic Frontier Foundation stated that the requirement that any site must self-police user generated content would impose significant liability costs and explains "why venture capitalists have said en masse they won't invest in online startups if PIPA and SOPA pass".[51][52]
Proponents of the bill argued that filtering is already common. Michael O'Leary of the MPAA testified on November 16 that the act's effect on business would be more minimal, noting that at least 16 countries already block websites and that the Internet still functions in those countries.[53] MPAA Chairman Chris Dodd noted that Google figured out how to block sites when China requested it.[54] Some ISPs in Denmark, Finland, Ireland and Italy blocked The Pirate Bay after courts ruled in favor of music and film industry litigation, and a coalition of film and record companies has threatened to sue British Telecom if it does not follow suit.[55] Maria Pallante of the United States Copyright Office said that Congress had updated the Copyright Act before and should again, or "the U.S. copyright system will ultimately fail." Asked for clarification, she said that the US currently lacks jurisdiction over websites in other countries.[53]
Weakening of "safe harbor" protections[edit]
The 1998 Digital Millennium Copyright Act (DMCA) includes the Online Copyright Infringement Liability Limitation Act, that provides a "safe harbor" for websites that host content. Under that provision, copyright owners who felt that a site was hosting infringing content are required to request the site to remove the infringing material within a certain amount of time.[56][57][58] SOPA would have bypassed this "safe harbor" provision by placing the responsibility for detecting and policing infringement onto the site itself, and allowing judges to block access to websites "dedicated to theft of U.S. property".[59]
According to critics of the bill such as the Center for Democracy and Technology and the Electronic Frontier Foundation, the bill's wording was vague enough that a single complaint about a site could be enough to block it, with the burden of proof resting on the site. A provision in the bill states that any site would be blocked that "is taking, or has taken deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation." Critics have read this to mean that a site must actively monitor its content and identify violations to avoid blocking, rather than relying on others to notify it of such violations.[45][60]
Law professor Jason Mazzone wrote, "Damages are also not available to the site owner unless a claimant 'knowingly materially' misrepresented that the law covers the targeted site, a difficult legal test to meet. The owner of the site can issue a counter-notice to restore payment processing and advertising, but services need not comply with the counter-notice."[61]
Goodlatte stated, "We're open to working with them on language to narrow [the bill's provisions], but I think it is unrealistic to think we're going to continue to rely on the DMCA notice-and-takedown provision. Anybody who is involved in providing services on the Internet would be expected to do some things. But we are very open to tweaking the language to ensure we don't impose extraordinary burdens on legitimate companies as long as they aren't the primary purveyors [of pirated content]."[62][63]
O'Leary submitted written testimony in favor of the bill that expressed guarded support of current DMCA provisions. "Where these sites are legitimate and make good faith efforts to respond to our requests, this model works with varying degrees of effectiveness," O'Leary wrote. "It does not, however, always work quickly, and it is not perfect, but it works."[30]
[edit]
An analysis in the information technology magazine eWeek stated, "The language of SOPA is so broad, the rules so unconnected to the reality of Internet technology and the penalties so disconnected from the alleged crimes that this bill could effectively kill e-commerce or even normal Internet use. The bill also has grave implications for existing U.S., foreign and international laws and is sure to spend decades in court challenges."[64]
Art Bordsky of advocacy group Public Knowledge similarly stated, "The definitions written in the bill are so broad that any US consumer who uses a website overseas immediately gives the US jurisdiction the power to take action against it potentially."[65]
On October 28, 2011, the EFF called the bill a "massive piece of job-killing Internet regulation," and said, "This bill cannot be fixed; it must be killed."[66]
Gary Shapiro, CEO of the Consumer Electronics Association, spoke out strongly against the bill, stating, "The bill attempts a radical restructuring of the laws governing the Internet", and that "It would undo the legal, safe harbors that have allowed a world-leading Internet industry to flourish over the last decade. It would expose legitimate American businesses and innovators to broad and open-ended liability. The result will be more lawsuits, decreased venture capital investment, and fewer new jobs."[67]
Lukas Biewald, founder of CrowdFlower, stated, "It'll have a stifling effect on venture capital... No one would invest because of the legal liability."[68]
Booz & Company on November 16 published a Google-funded study finding that almost all of the 200 venture capitalists and angel investors interviewed would stop funding digital media intermediaries if the bill became law. More than 80 percent said they would rather invest in a risky, weak economy with the current laws than a strong economy with the proposed law in effect. If legal ambiguities were removed and good faith provisions in place, investing would increase by nearly 115 percent.[69]
As reported by David Carr of The New York Times in an article critical of SOPA and PIPA, Google, Facebook, Twitter, and other companies sent a joint letter to Congress, stating "We support the bills' stated goals – providing additional enforcement tools to combat foreign 'rogue' Web sites that are dedicated to copyright infringement or counterfeiting. However, the bills as drafted would expose law-abiding U.S. Internet and technology companies to new uncertain liabilities, private rights of action and technology mandates that would require monitoring of Web sites. 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."[38][70] Smith responded, saying, the article "unfairly criticizes the Stop Online Piracy Act", and, "does not point to any language in the bill to back up the claims. SOPA targets only foreign Web sites that are primarily dedicated to illegal and infringing activity. Domestic Web sites, like blogs, are not covered by this legislation." Smith also said that Carr incorrectly framed the debate as between the entertainment industry and high-tech companies, noting support by more than "120 groups and associations across diverse industries, including the United States Chamber of Commerce".[71]
Users uploading illegal content[edit]
Lateef Mtima, director of the Institute for Intellectual Property and Social Justice at Howard University School of Law, expressed concern that users who upload copyrighted content to sites could potentially be held criminally liable themselves, saying, "Perhaps the most dangerous aspect of the bill is that the conduct it would criminalize is so poorly defined. While on its face the bill seems to attempt to distinguish between commercial and non-commercial conduct, purportedly criminalizing the former and permitting the latter, in actuality the bill not only fails to accomplish this but, because of its lack of concrete definitions, it potentially criminalizes conduct that is currently permitted under the law."[72]
An aide to Rep. Smith said, "This bill does not make it a felony for a person to post a video on YouTube of their children singing to a copyrighted song. The bill specifically targets websites dedicated to illegal or infringing activity. Sites that host user content—like YouTube, Facebook, and Twitter—have nothing to be concerned about under this legislation."[72]
Internal networks[edit]
A paper by the Center for Democracy and Technology claimed that the bill "targets an entire website even if only a small portion hosts or links to some infringing content."[57]
According to A. M. Reilly of Industry Leaders Magazine, under SOPA, culpability for distributing copyright material is extended to those who aid the initial poster of the material. For companies that use virtual private networks (VPN) to create a network that appears to be internal but is spread across various offices and employees' homes, any of these offsite locations that initiate sharing of copyright material could put the entire VPN and hosting company at risk of violation.[73]
Answering similar criticism in a CNET editorial, Recording Industry Association of America (RIAA) head, Cary Sherman wrote, "Actually, it's quite the opposite. By focusing on specific sites rather than entire domains, action can be targeted against only the illegal subdomain or Internet protocol address rather than taking action against the entire domain."[74]
Impact on web-browsing software[edit]
The Electronic Frontier Foundation expressed concern that free and open source software (FOSS) projects found to be aiding online piracy could experience serious problems under SOPA.[75] Of special concern was the web browser Firefox,[40] which has an optional extension, MAFIAAFire Redirector, that redirects users to a new location for domains that were seized by the U.S. government.[76] In May 2011, Mozilla refused a request by the United States Department of Homeland Security to remove MAFIAAFire from its website, questioning whether the software had ever been declared illegal.[77][78]
Potential effectiveness[edit]
Edward J. Black, president and CEO of the Computer & Communications Industry Association, wrote in the Huffington Post that "Ironically, it would do little to stop actual pirate websites, which could simply reappear hours later under a different name, if their numeric web addresses aren't public even sooner. Anyone who knows or has that web address would still be able to reach the offending website."[79]
An editorial in the San Jose Mercury-News stated, "Imagine the resources required to parse through the millions of Google and Facebook offerings every day looking for pirates who, if found, can just toss up another site in no time."[80]
John Palfrey of the Berkman Center for Internet & Society commented, "DNS filtering is by necessity either overbroad or underbroad; it either blocks too much or too little. Content on the Internet changes its place and nature rapidly, and DNS filtering is ineffective when it comes to keeping up with it."[41]
Technical issues[edit]
Deep-packet inspection and privacy[edit]
According to Markham Erickson, head of NetCoalition, which opposes SOPA, the section of the bill that would allow judges to order internet service providers to block access to infringing websites to customers located in the United States would also allow the checking of those customers' IP address, a method known as IP address blocking. Erickson has expressed concerns that such an order might require those providers to engage in "deep packet inspection," which involves analyzing all of the content being transmitted to and from the user, raising new privacy concerns.[81][82]
Policy analysts for New America Foundation say this legislation would "instigate a data obfuscation arms race" whereby by increasingly invasive practices would be required to monitor users' web traffic resulting in a "counterproductive cat-and-mouse game of censorship and circumvention [that] would drive savvy scofflaws to darknets while increasing surveillance of less technically proficient Internet users".[46]
Domain Name System[edit]
The Domain Name System (DNS) servers, sometimes likened to a telephone directory, translate browser requests for domain names into the IP address assigned to that computer or network. The original bill requires these servers to stop referring requests for infringing domains to their assigned IP addresses. DNS is robust by design against failure and requires that a lack of response is met by inquiries to other DNS servers.[83]
Andrew Lee, CEO of ESET North America, objected that since the bill would require internet service providers to filter DNS queries for the sites, this would undermine the integrity of the Domain Name System.[84]
According to David Ulevitch, the San Francisco-based head of OpenDNS, the passage of SOPA could cause Americans to switch to DNS providers located in other countries who offer encrypted links, and may cause U.S. providers, such as OpenDNS itself, to move to other countries, such as the Cayman Islands.[85]
In November 2011, an anonymous top-level domain, .bit, was launched outside of ICANN control, as a response to the perceived threat from SOPA, although its effectiveness (as well as the effectiveness of other alternative DNS roots) remains unknown.[86]
On January 12, 2012, House sponsor Lamar Smith announced that provisions related to DNS redirection would be pulled from the bill.[87][88][89]
Internet security[edit]
A white paper by several internet security experts, including Steve Crocker and Dan Kaminsky, wrote, "From an operational standpoint, a resolution failure from a nameserver subject to a court order and from a hacked nameserver would be indistinguishable. Users running secure applications need to distinguish between policy-based failures and failures caused, for example, by the presence of an attack or a hostile network, or else downgrade attacks would likely be prolific."[90]
Domain Name System Security Extensions[edit]
Stewart Baker, former first Assistant Secretary for Policy at the Department of Homeland Security and former General Counsel of the National Security Agency, stated that SOPA would do "great damage to Internet security"[83] by undermining Domain Name System Security Extensions (DNSSEC), a proposed security upgrade for DNS, since a browser must treat all redirects the same, and must continue to search until it finds a DNS server (possibly overseas) providing untampered results.[83] On December 14, 2011, he wrote that SOPA was "badly in need of a knockout punch"[83] due to its impact on security and DNS:
DNSSEC is a set of protocols developed by the Internet Engineering Task Force (IETF) for ensuring internet security. A white paper by the Brookings Institution noted, "The DNS system is based on trust", adding that DNSSEC was developed to prevent malicious redirection of DNS traffic, and that "other forms of redirection will break the assurances from this security tool".[91]
On November 17, Sandia National Laboratories, a research agency of the U.S. Department of Energy, released a technical assessment of the DNS filtering provisions in the House and Senate bills, in response to Representative Zoe Lofgren's (D-CA) request. The assessment stated that the proposed DNS filtering would be unlikely to be effective, would negatively impact internet security, and would delay full implementation of DNSSEC.[92][93]
On November 18, House Cybersecurity Subcommittee chair Dan Lungren stated that he had "very serious concerns" about SOPA's impact on DNSSEC, adding, "we don't have enough information, and if this is a serious problem as was suggested by some of the technical experts that got in touch with me, we have to address it".[94]
Transparency in enforcement[edit]
Brooklyn Law School professor Jason Mazzone warned, "Much of what will happen under SOPA will occur out of the public eye and without the possibility of holding anyone accountable. For when copyright law is made and enforced privately, it is hard for the public to know the shape that the law takes and harder still to complain about its operation."[61]
White House position[edit]
On January 14, 2012, the Obama administration responded to a petition against the bill, stating that while it would not support legislation with provisions that could lead to Internet censorship, squelching of innovation, or reduced Internet security, it encouraged "all sides to work together to pass sound legislation this year that provides prosecutors and rights holders new legal tools to combat online piracy originating beyond U.S. borders while staying true to the principles outlined above in this response."[116][117][118][119] More than 100,000 people petitioned the White House in protest.[120] Three officials from the Obama administration articulated the White House's position on proposed anti-piracy legislation, balancing the need for strong antipiracy measures while respecting both freedom of expression and the way information and ideas are shared on the Internet. "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."[121]
MPAA's continued efforts to enact SOPA principles[edit]
The 2014 Sony Pictures hack revealed that the MPAA had continued its efforts to enact SOPA-like blocking principles since the bill died in Congress. The emails indicated that the MPAA was actively exploring new strategies to implement SOPA-like regulations, such as using the All Writs Act to "allow [the MPAA] to obtain court orders requiring site blocking without first having to sue and prove the target ISPs are liable for copyright infringement."[204]
The MPAA has also allied itself with National Association of Attorneys General president Jim Hood, who supports SOPA principles and has stated that "Google's not a government… they don't owe anyone a First Amendment right… [i]f you're an illegal site, you ought to clean up your act, instead of Google making money off it."[205] On November 27, 2013, Hood sent a letter to Google outlining his grievances. It was later revealed that much of the letter was drafted by the law firm representing the MPAA.[206]
On October 21, 2014, Hood issued a subpoena to Google for information about, among other items, its advertising partnerships and practices concerning illegal and sexual content.[207] Google requested an injunction to quash the subpoena from the United States District Court of the Southern District of Mississippi, Northern Division. Google was granted such an injunction on March 2, 2015.[208] The injunction also prevented Hood from bringing a charge against Google for making third-party content available to internet users.[208] Effectively, the injunction protected Google from having Hood's claims enforced until after the conclusion of the case.[208]
An MPAA spokesperson criticized Google's use of the First Amendment, accusing the company of using freedom of speech "as a shield for unlawful activities."[209] Leaders in the technology industry commended the federal court for issuing the injunction.[209] In addition, one of Google's head lawyers noted that "[w]e're pleased with the court's ruling, which recognizes that the MPAA's long-running campaign to censor the web — which started with SOPA — is contrary to federal law."[210]
