Internet for Beginners: Why the Stop Online Piracy Act is Dangerous (Heald)

See also EA Audio: Scott Lucas with BBC on SOPA & Wikipedia's 24-Hour Strike

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Chris Heald writes for Mashable:

I’m sure you’ve heard by now that SOPA is bad and would ruin the Internet, but have you actually read the bill? If not, it’s worth reading, for two reasons. First, if you are going to oppose a bill, you should know exactly what you’re opposing, not just the vague principle behind it. Second, it’ll provide you with a valuable insight: that these bills are written in an attempt to obscure the truth.

First off, I’m going to qualify that I’m not a lawyer. However, I am a programmer, and that’s made me pretty good at unraveling spaghetti code. If ever a bill was spaghetti, this is it. If a programmer on my team wrote code as convoluted as this bill, I would fire him on the spot. That being said, there may be provisions I’m wrong about; if there are, please do correct me. My intent is to communicate the truth of this bill as cleanly as possible.

Here is the full text of the bill, as of Jan. 15, 2012. Open a copy, because I’ll be referring to it. It helps to click the “Printer Friendly” link to access a single-page view of the bill.

THE SCALPEL

Section 102(a)(2) permits the attorney general to take action against foreign sites (i.e., sites that do not fall under U.S. jurisdiction) if “the owner or operator of such Internet site is facilitating the commission of [copyright infringement].”

We’ll expand on this further down, but the really scary thing here is that there isn’t any qualification that the site be solely for the purpose of theft, only that it facilitate it. Since copyright violation is ridiculously easy, any site with a comment box or picture upload form is potentially infringing. Furthermore, DMCA Safe Harbor provisions are no defense. You, as a site operator, become liable for copyright infringement committed by your users, even if you comply with DMCA takedown requests.

This isn’t quite as bad as the rest of the bill because the power lies with the attorney general, rather than the copyright holder. But it’s not good, either. The language is so broad that it could be wielded against most any foreign site the AG chooses to target.

If the AG chooses to take action against a site (either against the operator, if they are subject to U.S. jurisdiction, or against the site itself if no one under U.S. jurisdiction can be found), then a subsequent court order would require the following:

• Internet service providers will be required to block your access to the site (section 102(c)(2)(A)(i)) within five days.
• Search engines (Google, Yahoo, Bing, etc.) will be forced to remove all references to the offending sites from their indexes (section 102(c)(2)(B)).
• Ad providers (Google AdSense, Federated Media, etc.) will be required to stop providing ad service to the site.
• Payment providers (PayPal, Visa, etc.) will be required to terminate service to the site.

Effectively, this bill gives the attorney general the power to fully censor foreign sites that the government does not have jurisdiction to take down directly. The most immediate example is WikiLeaks — under such an order, your ISP would be forced to block your access to Wikileaks. Once the technical means to do this are in place, then it becomes very easy for this power to be extended.

Implementing censorship protocols and giving the keys to the government is a scary, scary thing, and SOPA should be opposed simply based on this provision alone. But that’s not all.

THE SLEDGEHAMMER

The really unsettling part of the bill is section 103. It is titled “MARKET-BASED SYSTEM TO PROTECT U.S. CUSTOMERS AND PREVENT U.S. FUNDING OF SITES DEDICATED TO THEFT OF U.S. PROPERTY.” On a first reading, it doesn’t sound that frightening. Read through section A1.

1. DEDICATED TO THEFT OF U.S. PROPERTY- An ‘Internet site is dedicated to theft of U.S. property’ if–

   1. it is an Internet site, or a portion thereof, that is a U.S.-directed site and is used by users within the United States; and

   2. either

      1. the U.S.-directed site is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates–
         1. a violation of section 501 of title 17, United States Code;
         2. a violation of section 1201 of title 17, United States Code; or
         3. the sale, distribution, or promotion of goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Lanham Act or section 2320 of title 18, United States Code; or
      2. the operator of the U.S.-directed site–
         1. 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 of section 501 or 1201 of title 17, United States Code; or
         2. operates the U.S.-directed site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation of section 501 or 1201 of title 17, United States Code, as shown by clear expression or other affirmative steps taken to foster infringement.

   3. QUALIFYING PLAINTIFF- The term `qualifying plaintiff’ means, with respect to a particular Internet site or portion thereof, a holder of an intellectual property right harmed by the activities described in paragraph (1) occurring on that Internet site or portion thereof.

Wow, now there’s a chunk of legalese that’ll make your eyes gloss over. Let’s cut straight to the nasty bits.

An `Internet site is dedicated to theft of U.S. property’ if [a portion of the site is US-directed] and is used by users within the United States and is primarily designed or operated for the purpose of offering services in a manner that enables or facilitates [copyright violation or circumvention of copyright protection measures].

Still doesn’t sound that bad, but consider this: Any site that allows users to post content is “primarily designed for the purpose of offering services in a manner that enables copyright violation.” The site doesn’t have to be clearly designed for the purpose of copyright violation; it only has to provide functionality that can be used to enable copyright violation.

This means that YouTube, Facebook, Wikipedia, Gmail, Dropbox and millions of other sites would be “Internet sites…dedicated to theft of U.S. property,” under SOPA’s definition. Simply providing a feature that would make it possible for someone to commit copyright infringement or circumvention (see: 09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0) is enough to get your entire site branded as an infringing site.

Furthermore, you may be painted as infringing if you, the site owner, “take deliberate actions to avoid confirming a high probability of the use of…the site to carry out acts [of copyright infringement or circumvention].” This means if you deliberately decide that it’s not cost-effective to screen every piece of content and determine whether or not it is copyright-free before it is posted to your site (whether there is infringing content on your site or not), then you are labeled as an “Internet site…dedicated to theft of U.S. property.” Simply the act of not actively screening every piece of content makes you a criminal under SOPA.

SO WE'RE ALL INFRINGING, NOW WHAT?

Section 103(b) is really hairy, but we’ll attempt to parse through it. I’m not going to copy the whole text here, for the sake of brevity, though I do encourage you to read and understand it. Instead, we’ll discuss the most salient parts.

Payment providers (section (b)(1)) and ad networks ((b)(2)) are required, upon receiving a claim against a site by a copyright holder (section (4)(A)(i)), to cut off all services to the accused site within five days, unless they receive a counter-notification from the operator of the accused site. Note that there is no requirement that the accused be notified of said accusation, and thus, they would have no opportunity to provide a counter-notice. In practice, you’d probably find out about it when you notice that the money stops coming in, maybe a week or two later.

The only way to provide a counter-notice is to agree to submit to U.S. jurisdiction (section (5)(A)(ii)) if you are a foreigner (yikes), and to state under penalty of perjury that your product does not fit the definition of an “Internet site…dedicated to theft of U.S. property.” As we discussed above, it’s nearly impossible to not fit that definition. If you have a comment box, and you state that you aren’t guilty under that definition, you just committed perjury. Enjoy prison. Furthermore:

Any provider of a notification or counter notification who knowingly materially misrepresents under this section…that such site does not meet the criteria of an Internet site dedicated to the theft of U.S. property shall be liable for damages, including costs and attorneys’ fees, incurred by the person injured by such misrepresentation as a result of the misrepresentation.

So, if you provide that counter-notification that you aren’t an infringing site, but if you can possibly be painted to fit the definition of an infringing site (and again, you will be), you are now liable for all of the attacking party’s attorney fees. By replying, you give them carte blanche to sue you with no cost to themselves.

Now, if you provide a counter-notice, or an ad network or payment provider fails to cut off service within five days, then the accusing party may then serve you (the site owner) with a lawsuit. If they can’t get a hold of you, they may serve an in rem lawsuit against your site. If they win the lawsuit (and they will, if nobody is there to challenge them), then the court will award them ownership of your site (likely, the domain). This is the point where your accuser is required to notify you that they are taking action against you. This is how the situation could play out.

1. Plantiff accuses your site of infringement and serves notice to PayPal and Google, et al. PayPal and Google must shut off your payment services and ad services in 5 days. You are never notified.

   • If a service provider fails to shut off service, then the plantiff may may now take you to court for infringement.

2. Once you become aware that you’ve been accused of infringement, you either a) let your services get cut off by taking no action, or b) serve a counter-notice, which places you under US jurisdiction (if you’re not in the US) and sets you up for a perjury charge.

   • If you respond with a counter-notice, then Plantiff may now take you to court for infringement.

3. Plantiff accuses your site of infringement, and you don’t respond. Plantiff files an in rem lawsuit, and seizes control of your domain.

THE BULLDOZER

Section 201(b)(1) expands criminal copyright infringement to include:

…At least 10 copies or phonorecords, or of at least 10 public performances by means of digital transmission, of 1 or more copyrighted works, during any 180-day period, which have a total retail value of more than $2,500.

Now, the way that the value of a work can be computed in court is the very crude (value of the work times number of views).

…Total retail value may be shown by evidence of the total retail price that persons receiving the reproductions, distributions, or public performances constituting the offense would have paid to receive such reproductions, distributions, or public performances lawfully.

This means, for example, if you upload a video to YouTube of you singing a popular song, and that song might sell for $1, and your video gets 2,500 views, you are guilty of felony copyright infringement. Furthermore, you can tack on “willful infringement for commercial gain or valued at more than $1,000.”

This would make you a felon, and if a copyright holder were to bring a suit against you, would give you a criminal record that would make it virtually impossible to gain future employment, and may subject you to up to three years in prison for singing a song. You don’t have to receive any money. You don’t have to gain anything from your video. Simply receiving 2,500 views on a song you sung, which happens to have copyright held by someone else, makes you a felon.

Section 201(c) of SOPA includes a new rule of construction: a person with “a good faith reasonable basis in law to believe that the person’s conduct is lawful shall not be considered to have acted willfully for purposes of the amendments made by this section.” By implication, a person who believed her conduct was protected (e.g., fair use) might be found to have acted “willfully,” if her belief about the law is held to be unreasonable.

SOPA expands “willful infringement” to include those who don’t understand the law, not just those who understand it and choose to ignore it.

TO SUM UP

SOPA:

• Gives the government the right to unilaterally censor foreign websites.
• Gives copyright holders the right to issue economic takedowns and bring lawsuits against website owners and operators, if those websites have features that make it possible to post infringing content.
• Makes it a felony offense to post a copyrighted song or video.

This bill turns us all into criminals. If it passes, then you either stop using the Internet, or you simply hope that you never end up in the crosshairs, because if you’re targeted, you will be destroyed by this bill. You don’t have to be a big, mean, nasty criminal — common Internet usage is effectively criminalized under this law. This bill will kill American innovation and development of the Internet, as it will become too risky to do anything of value. It is toxic and dangerous, and should not, under any circumstances, be supported.

I hope that this helps you to more clearly understand why SOPA is bad. Rhetoric is efficient, but you should know what you’re opposing and why you’re opposing it. It’s difficult to read and understand, but if you care about the Internet, free speech and personal freedom at all, you owe it to yourself to understand and oppose SOPA.