Stop Online Piracy Act

Stop Online Piracy Act

Long title	"To promote prosperity, creativity, entrepreneurship, and innovation by combating the theft of U.S. property, and for other purposes. " —H.R. 3261
Acronyms (colloquial)	SOPA
Legislative history
Introduced in the House as HR 3261 by Lamar Smith (R-TX) on October 26, 2011 Committee consideration by House Judiciary Committee

The Stop Online Piracy Act (SOPA), also known as H.R.3261, is a bill that was introduced in the United States House of Representatives on October 26, 2011, by Representative Lamar Smith [R-TX] and a bipartisan group of 12 initial co-sponsors. The bill expands the ability of U.S. law enforcement and copyright holders to fight online trafficking in copyrighted intellectual property and counterfeit goods. Now before the House Judiciary Committee, it builds on the similar PRO-IP Act of 2008 and the corresponding Senate bill, the Protect IP Act.

The bill would allow the U.S. Department of Justice (DOJ), as well as copyright holders, to seek court orders against websites accused of enabling or facilitating copyright infringement. Depending on who requests the court orders, the actions could include barring online advertising networks and payment facilitators such as PayPal from doing business with the infringing website; barring search engines from linking to such sites and requiring Internet service providers to block access to such sites. The bill would make unauthorized streaming of copyrighted content a felony. The bill also gives immunity to Internet services that voluntarily take action against websites dedicated to infringement, while making liable for damages any copyright holder who knowingly misrepresents that a website is dedicated to infringement.

Proponents of the bill say it protects the intellectual property market, including the resultant revenue and jobs, and is necessary to bolster enforcement of copyright laws especially against foreign websites. Opponents say it is censorship, that it will "break the internet", cost jobs, and will threaten whistleblowing and other free speech.

The House Judiciary Committee held a hearing on SOPA on November 16, 2011. The bill sponsor has said he would like to see the bill go into markup, for merger with the somewhat different Protect IP Act Senate bill, by the end of the year.

Contents

The bill would authorize the U.S. Department of Justice to seek court orders against websites outside U.S. jurisdiction accused of infringing on copyrights, or of enabling or facilitating copyright infringement. After delivering a court order, the U.S. Attorney-General (AG) could require US-directed Internet service providers, ad networks such as Google and payment processors such as Paypal or Visa to suspend doing business with sites found to infringe on federal criminal intellectual property laws and take "technically feasible and reasonable measures" to prevent access to the infringing site. The AG could also bar search engines from displaying links to the sites.

Provider suspensions will likely target entire accounts, said the Electronic Frontier Foundation, and the bill's provisions "grant them immunity for choking off a site if they have a "reasonable" belief that a portion of a site enable(s) infringement, (and) give the payment processors a strong incentive to cut them off anyway."

The bill establishes a two-step process to seek relief from harm by a site dedicated to infringement. The rights holder must first notify, in writing, related payment facilitators and ad networks of the identity of the website, who, in turn, must then forward that notification and cease services to that identified website, unless that site provides a counter notification explaining how it is not in violation. The rights holder can then sue for injunctive relief against the site operator, if he responds, or if not against the payment or advertising services if they fail to cease service.

"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," noted a law professor.

The second section increases the penalties for streaming video and for selling counterfeit drugs, military materials or consumer goods. The bill would make unauthorized streaming of copyprotected content a felony.

Ramifications

"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 potentially take action against it," said Art Bordsky of Public Knowledge.

According to co-sponsor Representative Bob Goodlatte [R-VA], chairman of the House Judiciary Committee's Intellectual Property sub-panel, SOPA represents a rewrite of the PROTECT IP Act to address tech industry concerns. Goodlatte told The Hill that the new version requires court approval for action against search engines. The Senate version, PROTECT IP, does not.

Goodlatte added, "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]". The DMCA provision known as safe harbor protects YouTube and other sites such as social networks hosting uploaded user material from liability, provided the sites promptly remove infringing material brought to their attention, removing "the risk that the few users among millions who post copyrighted material, libelous statements or counterfeit goods would subject the site to business-crushing legal liabilities."

"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. Fortunately, this is the House version of a Senate bill called the Protect IP Act (S. 968) that is very different. As a result, both bills if passed in something resembling their current states will have to be considered by a conference committee," said a news analysis in the information technology magazine eWeek.

Technical concerns

Open source software projects may shut down under this bill, under a provision which the EFF believes to target Mozilla, the browser used for about a quarter of all web searches. Mozilla refused in early 2011 to pull the Mafiaafire add-on from its website, asking "Have any courts determined that the Mafiaafire add-on is unlawful or illegal in any way?"

Rep. Zoe Lofgren (D-CA), whose district includes part of Silicon Valley, and who has called the bill "the end of the internet as we know it," on Nov 17 released and posted to her website a technical assessment she requested from Sandia National Laboratories of the House and Senate bills. Neither would effectively control piracy and they would delay implementation of DNSSEC, her statement said, summarizing Sandia's response. Sandia National Laboratories is an agency of the US Department of Energy that does nuclear, computer, and military research.

The Sandia letter mostly agrees with a white paper criticizing the Senate bill. It disagrees with the contention of harm to DNSSEC implementation because, it says, DNSSEC remains so far mostly unimplemented although the need for it is clear.

"And no, that is not excessive hyperbole," said the San Jose Mercury-News of Lofgren's end-of-the-internet statement. "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."

"In addition to domain-name filtering, SOPA would impose an open-ended obligation on Internet Service Providers (ISPs) to prevent access to infringing sites...Preventing access to specific sites would require ISPs to inspect all the Internet traffic of its entire user base—the kind of privacy-invasive monitoring that has come under fire in the context of "deep packet inspection" for advertising purposes," said Center for Democracy and Technology lawyers David Sohn and Andrew McDiarmid in an article written for The Atlantic.

"It would cover IP blocking. I think it contemplates deep packet inspection" said Markham C. Erikson, head of NetCoalition, a group that includes Google, Yahoo and eBay. An aide to sponsor Lamar Smith said that the judge would decide what sort of blocking to order. Cary Sherman, Chairman and CEO of the RIAA wrote in a guest editorial for CNET that the proposed law targeted "only the illegal subdomain or Internet protocol address rather than taking action against the entire domain." (sic)

Americans may simply switch to offshore DNS providers such as CloudFloor who offer encrypted links, said David Ulevitch, the San Francisco-based head of OpenDNS. U.S. entrepreneurs might also move offshore. "We can reincorporate as a Cayman Islands company and offer the same great service and not be a U.S. company anymore," he said.

Andrew Lee, CEO of ESET North America, has expressed concerns 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. Ars Technica on Nov 17 2011 reported the appearance of a new anonymous top-level domain outside of ICANN control.

Bill mandates at odds with internet structure

The structure of a web site is distinct from domain structure or enterprise architecture, which may in turn not correspond to the physical or virtual network devices. Individual pages of a website are files or, more usually, folders containing many files, located on a server which may belong to the domain holder or be rented from a cloud computing provider such as Amazon or Rackspace.

A Center for Democracy and Technology paper says that the bill "targets an entire website even if only a small portion hosts or links to some infringing content." Answering similar criticism in a CNET editorial, 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."

An IP address usually corresponds to a physical interface on a device. That device may be a firewall or a web server or some other hardware. Web hosts may assign many low-traffic web sites to a single address, distributing their traffic internally. Large domains and wide area networks may have multiple IP addresses, usually for load balancing. Such large systems would probably have a dedicated server for incoming web traffic in a DMZ outside the firewall.

High-traffic web sites like www.wikipedia.com or Amazon.com have multiple servers and may use several IP addresses to spread traffic between them. Most networks also use network address translation or port address translation, so the IP address seen outside the domain probably is for a firewall interface, not the computer that initiated the traffic.

Penalties for streaming

An aide to bill sponsor Lamar Smith has said that "Sites that host user content—like YouTube, Facebook, and Twitter—have nothing to be concerned about under this legislation," but many disagree. Lateef Mtima, Director of the Institute for Intellectual Property and Social Justice at the Howard University School of Law, says:

"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...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."

Mtima continued, "The Senate version requires that a video has more than '10 performances', which legal experts say is equivalent to 'views'. In the House version, only 1 view is required. In the House version, the market value of licensing the work only needs to be $1,000 (a merely nominal licensing fee for any popular music) or greater to qualify as a criminal offense."

DNS servers and security

Domain Name System (DNS) servers translate browser requests for domain names into the IP address assigned to that computer or network. Most often compared to a phone directory, which does describe its behaviour as seen from a browser, DNS uses a hierarchical system of zones and authoritative and non-authoritative servers to keep track of changes to the name assignments. The root zone lists only the authoritative servers for the top-level domains, for example. The authoritative server for .com domains does not know about .co.ok domains, and so on.

Most web traffic is handled by the thousands of non-authoritative servers which may not list the domain requested but can refer requests to another server. The bill requires these servers to stop referring requests for domains found infringing to their assigned IP addresses. Operation In Our Sites, a current DoJ program, redirects web requests to a warning page. In Cuba, an error message appears: "This programme will close down in a few seconds for state security reasons,” according to Reporters Without Borders. The Chinese DNS filters simply drop the request, making it look like the site is offline or out of business.

Although most people find domain names easier to remember than IP addresses, removing a website from the DNS system does not prevent anyone from reaching it. Users that know the site's IP address can subsitute that for the domain name. Several groups like Citizen Lab have have developed web proxies to circumvent web filters in China, Belarus and Myanmar and other countries where the internet is currently censored.

House cybersecurity subcommittee chairman Dan Lungren told Politico's Morning Tech that he had "very serious concerns" about SOPA's impact on the Internet security protocol, 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. I can't afford to let that go by without dealing with it."

Detection considerations

Google voluntarily blocks child pornography using methods that begin by detecting skin tones, said a representative at the Nov 16th hearing, but does not know how to detect copyright infringement. Under current law, it can rely on copyright holders to bring offending material to its attention. China reportedly requires an internet police force of 30,000 for its censorship efforts, which meet with only partial success.

Web filtering software has gotten more intelligent, but can still remove innocuous results, even when properly configured. Even techniques involving skin tone can still give 14 to 18% false positives, roughly half the rate of commercial software.

Business concerns

According to opponents of the bill, its requirements would overturn the Digital Millennium Copyright Act's (DMCA) process requiring copyright owners to submit notices of infringement to websites and ask for the infringing material to be taken down, legal observers say. "If any website sets itself up in a way that does not actively log or monitor user behavior, a rights holder can always allege that the site is "avoiding confirming" the use of the site for infringement. That rights holder allegation is sufficient to put the website at major risk of losing access to payment and ad networks," said CDT lawyer David Sohn.

"Is this really what we want to do to the internet? Shut it down every time it doesn't fit someone's business model?" asks Harvard Business Review blogger James Allworth, concluding that the bill would "give America its very own version of the Great Firewall of China."

At least 16 countries block websites, and the internet still functions in those countries, said Michael O'Leary of the MPAA at the November 16th Judiciary Committee hearing. For instance, some European countries block Pirate Bay. Maria Pallante of the US Copyright Office said that Congress has 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.

Copyright

"Intellectual property is one of America's chief job creators and competitive advantages in the global marketplace," said Goodlatte, "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. The bill will also protect consumers from dangerous counterfeit products, such as fake drugs, automobile parts and infant formula."

"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," warned Brooklyn Law School professor Jason Mazzone.

DMCA

Critics of the bill, including Google, have expressed concern about the bill's effect provisions of the existing Digital Millennium Copyright Act that protect Internet companies that act in good faith to remove user-uploaded infringing content from their sites.

Etsy, Flickr and Vimeo all seem likely to shut down if the bill becomes law, the EFF warned. YouTube is online today because it adheres to precisely the takedown provisions that the bill would alter. According to critics, the bill would ban linking to sites deemed offending, even in search results and on services such as Twitter.

Jobs

"This bill cannot be fixed; it must be killed," the EFF said on October 28 2011, calling the bill a "massive piece of job-killing Internet regulation."

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." 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."

A study found in early 2011 found that the internet created 2.6 jobs for every job lost to it and that "in the mature countries we studied, the Internet accounted for 10% of GDP growth over the past 15 years. And its influence is expanding. Over the past five years, the Internet's contribution to GDP growth has doubled to 21 percent."

Startups and venture capital

"It'll have a stifling effect on venture capital," said internet entrepreneur Lukas Biewald, founder of Crowdflower. "The venture capitalists have been pretty vociferous opponents of this bill. If it's making investors nervous, that's bad for me and other startup founders. No one would invest because of the legal liability."

Booz & Company on Nov 16 released a study finding that almost all of the 200 venture capitalists and angel investors interviewed would stop funding digital media intermediaries if the House bill becomes 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. The study was funded by Google and researched and written by Booz.

Drug Industry

John Clark, spokesman for Pfizer, testified at the committee hearing that patients couldn't always detect cleverly forged websites selling drugs that were either misbranded or simply counterfeit. An indignant RxRights, a patients' rights 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." 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.

Bill sponsor Lamar Smith (R-TX) accused Google of obstructing the bill, citing its $500 million settlement with the DOJ of charges that it allowed ads from Canadian pharmacies, leading to illegal imports of prescription drugs. "Given Google's record, their objection to authorizing a court to order a search engine to not steer consumers to foreign rogue websites is more easily understood," Smith said at the hearing. "Unfortunately, the theft of America's IP costs the U.S. economy more than $100 billion annually and results in the loss of thousands of American jobs." 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 , whether or not the drugs or the pharmacies are legitimate.

Free speech concerns

Many proxy servers, such as those used during the Arab Spring, can also be used to thwart copyright enforcement and therefore may be made illegal by this law. "If SOPA and PIPA are enacted, the US government must be prepared for other governments to follow suit, in service to whatever social policies they believe are important — whether restricting hate speech, insults to public officials, or political dissent." warned the Center for Democacy and Technology.

"Imagine if the U.K. created a blacklist of American newspapers that its courts found violated celebrities' privacy?" asked Jerry Brito on Time's Techland blog, calling the bill a bad example. "Or what if France blocked American sites it believed contained hate speech? We forget, but those countries don't have a First Amendment."

On November 18, 2011 the European parliament adopted by a large majority a resolution that "stresses the need to protect the integrity of the global Internet and freedom of communication by refraining from unilateral measures to revoke IP addresses or domain names."

Whistleblowers already risk punitive copyright lawsuits, no less ruinous because they are eventually decided in favor of the whistleblowers. Microsoft in 2010 served Cryptome with a DMCA takedown notice for a non-commercial handbook for law enforcement showing how to subpoena Microsoft user records. Network Solutions shut down the site when its owner refused to remove the material. Microsoft eventually backed down. Web hosts served with takedown notices by Diebold in 2003 generally removed material about problems with the company's voting machines rather than argue its constitutional protections. Diebold eventually lost a precedent-setting case in court but this required more than a year of litigation.

"A bill that was to target only the "worst of the worst" foreign Web sites committing blatant and systemic copyright and trademark infringement has morphed inexplicably into an unrestricted hunting license for media companies to harass anyone foreign or domestic—who questions their timetable for digital transformation," wrote CNET correspondent Larry Downes.

Supporters

The Stop Online Piracy Act was introduced by Representative Lamar Smith [R-TX] and was initially co-sponsored by Howard Berman [D-CA], Marsha Blackburn [R-TN], Mary Bono Mack [R-CA], Steve Chabot [R-OH], John Conyers [D-MI], Ted Deutch [D-FL], Elton Gallegly [R-CA], Bob Goodlatte [R-VA], Timothy Griffin [R-AR], Dennis A. Ross [R-FL], Adam Schiff [D-CA] and Lee Terry [R-NE]. As of November 15, 2011, there were 24 sponsors.

The legislation has broad support from organizations that rely on copyright, including the Motion Picture Association of America, the Recording Industry Association of America, Macmillan Publishers, Netflix, Viacom, and various other companies and unions in the cable, movie, and music industries. Supporters also include trademark-dependent companies such as Nike, L'Oréal, and Acushnet Company.

Both the AFL-CIO and the U.S. Chamber of Commerce support H.R. 3261, and many industries have also publicly praised the legislation. On September 22, 2011, a letter signed by over 350 businesses and organizations—including NBCUniversal, Pfizer, Ford Motor Company, Revlon, NBA, and Macmillan—was sent to Congress encouraging the passage of the legislation this year.

Opposition

EFF home page with American Censorship Day banner

Opponents of the bill include Google, Yahoo!, Facebook, Twitter, Reddit, AOL, LinkedIn, eBay, Mozilla Corporation, and Wikimedia Foundation, the Brookings Institution and human rights organizations such as Reporters Without Borders, the Electronic Frontier Foundation, the ACLU and Human Rights Watch.

The Library Copyright Alliance (including the American Library Association) objects to the broadened definition of "willful infringement" and the introduction of felony penalties for noncommercial streaming infringement, stating that these changes could encourage criminal prosecution of libraries.

On November 16, Tumblr, Mozilla, Reddit, Techdirt, and the Center for Democracy and Technology were among many other Internet companies that protested the Stop Online Piracy Act by participating in a so-called "American Censorship Day". They displayed black banners over their site logos with the words "STOP CENSORSHIP".

House Minority Leader Nancy Pelosi has expressed opposition to the bill, as well as Representatives Darrell Issa (R-CA) and presidential candidate Ron Paul (R-TX), who joined nine Democrats to sign a letter to other House members warning that the bill would cause "an explosion of innovation-killing lawsuits and litigation." "Issa said the legislation is beyond repair and must be rewritten from scratch," reported The Hill. Issa and Lofgren have announced plans for legislation offering "a copyright enforcement process modeled after the U.S. International Trade Commission's (ITC) patent infringement investigations"

Criticism of the committee hearing

"The techno-ignorance of Congress was on full display. Member after member admitted that they really didn't have any idea what impact SOPA's regulatory provisions would have on the DNS, online security, or much of anything else," said Adam Thierer, a senior research fellow at the Mercatus Center. " "One by one, each witness—including a lobbyist for the Motion Picture Association of America—said they weren't qualified to discuss...DNSSEC", CNET reported.

House cybersecurity subcommittee chairman Dan Lungren told Politico's Morning Tech that he had "very serious concerns" about SOPA's impact on the Internet security protocol, 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. I can't afford to let that go by without dealing with it."

"This is just another case of Congress doing the bidding of powerful lobbyists—in this case, Hollywood and the music industry, among others. It would be downright mundane if the legislation weren't so draconian and the rhetoric surrounding it weren't so transparently pandering," said a Fortune editorial.

Congress has stated that all opponents of the bill will be rejected from hearings.

See also

• Protect IP Act
• The Commercial Felony Streaming Act
• Combating Online Infringement and Counterfeits Act (COICA)
• Anti-Counterfeiting Trade Agreement (ACTA)
• PRO-IP Act
• Digital Millennium Copyright Act
• Copyright Term Extension Act
• Splinternet
• Scunthorpe Problem

External Links

• H.R. 3261 on GovTrack
• Brookings Institution white paper
• What DNS Is Not