New Anti-Piracy Legislation Would Break the Internet Without Stopping Piracy

There’s so much wrong with Congress’s new anti-piracy legislation that it’s hard to know where to start. SOPA, the Stop Online Piracy Act, is the House version of the Senate’s PROTECT IP act, and it would dramatically amp up the power of copyright holders to interfere with website operation, make it a felony for any website to stream copyrighted material, and essentially allow the blacklisting of entire domains. And while it would do all this in the name of protecting copyright holders, it probably wouldn’t actually stop much piracy.

Federal lawmakers aren’t exactly the most tech-savvy bunch, and that frequently leads to legislation that’s problematically vague. David Sohn at the Center for Democracy and Technology (CDT) explains how copyright holders could take advantage of SOPA’s vague legislative language:

Another section of H.R. 3261 [SOPA] says that a website is "dedicated to theft of U.S. property" if (among several independent definitional prongs) it takes "deliberate actions to avoid confirming a high probability" of the use of the site to carry out copyright infringement.  Not exactly a model of clarity.  But the beauty of this provision, from the point of view of a rights holder, is that there is no need to go to court to puzzle through what this means.  Instead, rights holders can decide for themselves.  All they need is a good faith belief that a website is "avoiding confirming" infringement, and they can demand that payment systems and advertising networks cease doing business with the website.  (Payment systems and ad networks are required to comply unless and until they receive a counter-notice, at which point they have discretion to reinstate the website pending a possible court order or just ignore the counter-notice and be done with it.) This seems like a backdoor way of imposing a monitoring obligation on any website that allows users to post content.

CNet contributor Larry Downes argues that the vagueness is actually intentional: “Where clarity isn’t possible,” he writes, “the drafters have opted for vagueness, open-ended definitions, and hedges.  Even the term ‘including’ is defined, to be clear that it means ‘including but not limited to.’”

Meanwhile, the law incorporates a previously proposed provision making it a felony to stream copyrighted material over the web—which could mean severe criminal penalties for something as simple as posting a video of yourself singing a copyrighted tune on YouTube. Violators could face a fine and up to five years in prison.  At Ars Technica, Reason contributor Timothy Lee interviewed Ryan Radia of the Competitive Enterprise Institute about the bill:

The legislation also incorporates a Senate proposal to make unauthorized streaming of copyrighted works a felony. "The problem is that there's no commercial gain requirement in the House version," Radia told Ars. And he argued that the dollar-value thresholds in SOPA are too low, creating a risk that minor offenders—maybe even Justin Bieber—will wind up in jail.

And it might not even work. The law relies on domain-name filtering to “disappear” offending websites. But as the CDT explained back in March, there are a variety of relatively simple ways for website operators to ensure the blocking has little effect:

Domain-name seizure and blocking can be easily circumvented, and thus will have little ultimate effect on online infringement.

The DNS performs a relatively simple function: translating text URLs (like www.cdt.org) into machine-readable IP addresses (like 72.32.6.120).  Seizing a domain name involves ordering the relevant registrar or registry to effectively revoke the website's domain name registration, thus preventing the site from continuing to use that particular name.  Blocking a domain name involves ordering a domain name lookup service (for most users, a function performed by their ISP) not to respond to any user request to look up the IP address associated with that name.

Significantly, neither seizing nor blocking a website’s domain name removes the site – or any infringing content – from the Internet.  The site and all its contents remain connected at the same IP address.  And there are numerous ways a targeted site may still be reached.

In the case of a domain name seizure, the site’s operator could simply register a new domain name for the site.  For example, most of the sports-streaming sites connected to ten domains ICE seized in February quickly reappeared and are easily located at new domains.  Alternatively or in addition, the site's operators could publicize its IP address, which users could then bookmark in lieu of saving or remembering the domain name.  Or a site’s operators could distribute a small browser plug-in or other piece of software to allow users to retrieve the IP addresses of the operators’ servers.  Such simple tools would make the process of following a site around the web virtually automatic. The same tactics could be used to evade domain name blocking.

So this will stop almost no one from accessing pirated material. As the Mercatus Center’s Jerry Brito points out at Time’s Techland, you can find sites that host pirated material but are listed only by IP address through a simply Google search. Worse, the blacklisting sets a dangerous precedent for global Internet governance. Here’s Brito again:

At a moment when Secretary of State Hillary Clinton is urging world governments to keep their hands off the Internet, creating a blacklist would send the wrong message. And not just to China or Iran, which already engage in DNS filtering, but to liberal democracies that might want to block information they find naughty. Imagine if the U.K. created a blacklist of American newspapers that its courts found violated celebrities' privacy? Or what if France blocked American sites it believed contained hate speech? We forget, but those countries don't have a First Amendment. The result could be a virtually broken Internet where some sites exist for half the world and not for the other.

There are a lot of folks invested in the fear that big corporate telecom operators might block off parts of the Internet, despite almost no actual examples of this happening. There's plenty of evidence, however, that governments all over the world are willing to take extraordinary measures to attempt to monitor, control, and block Internet access; SOPA would make the expansion of such measures even more likely. 

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  • ||

    Intellectual property rights were already turned up to "11." Now they want to go up to "13."

  • A production company||

    We'll be seeing you in court for using a joke that was original material in one of our films.

  • ||

    Yeah, and while the US leads the way in this, it pressures other governments like the EU to ramp up their copyrights. Life + 70 years seems to be the worldwide standard now.

  • ||

    Life + 70 was something we got from them, not the other way around. It's from Berne, which we signed up for to save Mickey in the late 80s.

  • ||

    Aha. Wait, what do you mean we, Kimosabe, I live in the EU? But there was the big ramp up to 95 that Clinton signed in, and then something more tacked on after that, right? The 120 thing?

  • ||

    I mean that the major stated reason my we (the United States) signed on to Berne was to conform our copyright duration, etc. with the EU's.

  • ||

    Does Berne supersede this 95 year thing Clinton signed?

  • ||

    I'm stretching my memory here, but I think we adopted Berne in 1988 or so. There was another treaty we signed up for in the mid-90s, and there was the DMCA.

  • ||

    I remember downloading and reading Project Gutenberg Australia books that were still under copyright in the US in the late 90s, specifically Sherlock Holmes His Last Bow, and I had the impression that they were open source in Europe also, but I'm probably imagining that.

  • ||

    What is and isn't in the public domain can be surprising. Like "Happy Birthday to You."

    I think maybe the term extension did happen in the late 90s. I was thinking that it was when we signed on to Berne, which was earlier, but I remember writing something in opposition to us extending the term during my White House fellowship, which was in 1995.

  • ||

    I vaguely remember it being a specific US thing when I was reading a lot about IP back in the 90s.

  • BakedPenguin||

    Life + 70 was something we got from them...

    Even worse are "moral rights". This would make parody and satire off limits.

  • ||

    We have some limited moral rights here, too, but nothing like in Europe. Not yet, anyway.

  • ||

    Moral rights?

  • ||

    Droit moral or so-called author's rights. The idea is that the author has some inherent rights in works that can't be sold. To prevent misattribution and mutilation of the work, that sort of thing.

  • ||

    I see. Well, you put the words moral and rights together and you just know bad things are gonna happen.

  • ||

    It's not that kind of moral.

  • ||

    I don't get it, moral as in natural or inalienable rights?

  • ||

    That's more like it. What's funny is that it's almost an American point of view in some respects, stemming back to a natural law theory.

    In intellectual property, the U.S. went a different direction, with copyright and patent being promoted as monopolies for strictly utilitarian reasons (i.e., to promote the progress of the sciences and the arts).

  • Lord Humungus||

    whose arm is Justin Bieber holding?

  • Lord Humungus||

    darn, beat by the alt-text

  • PermaLurker||

    THAT is the arm of Vecna!

  • Live Free or Diet||

    Love the D&D reference.
    Got a shirt from dragonstuff.com shows 3 dragons playing Houses & Humans.

  • Almanian||

    New Bieber Alt Text:

    "YEAH! I RIPPED THIS FUCKIN' ARM OFF SOME GUY AND I'M HOLDING IT HERE, SCOWLING! WHO'S A PUSSY NOW, TUFF GAI?! YOU WANT SOME O' THIS?? I DIDN'T THINK SO...BIEBER FUCKING OUT!"

    *drops arm - and headset - walks offstage*

  • Ska||

    "I won't just give you a bitch smack - I'll rip this fucking guy's arm off and bitch smack you with it!!"

  • Zuo||

    "YEAH! I RIPPED THIS FUCKIN' ARM OFF SOME GUY HELPLESS TODDLER AND I'M HOLDING IT HERE, SCOWLING! WHO'S A PUSSY NOW, TUFF GAI?! YOU WANT SOME O' THIS?? I DIDN'T THINK SO...BIEBER FUCKING OUT!"

    fixed

  • Joe M||

    What are the chances of this bill passing?

  • Scaremonger||

    Irrelevant!

  • affenkopf||

    thepiratebay.org is already blocked in several countries like Belgium.

  • NotSure||

    Find a proxy site, and piratebay is back.

  • Pope Benedict XVI||

    Italy as well :/

  • Joe M||

    I just googled this bill, and so far, every single report I see on it is strongly opposed, which is great. The only group I've seen in favor of it is the RIAA, which is obvious, of course. But I see a huge outcry torpedoing this quickly, thank goodness.

  • Number 2||

    This bill has all the earmarks of an old lobbying tactic: have a friendly legislator introduce a bill so extreme that it provokes outrage, so when you finally introduce the law you really want, it seems "reasonable" by comparison even though it is still objectively bad -- and it allows you to attack those who oppose the "reasonable" bill as "extremists" who "refuse to compromise."

  • ||

    It's the same strategy I use when deciding on a place to eat out.

  • ||

    This is how women end the debate on taking the husband's name. She suggests he take her name, so then keeping their own surnames sounds reasonable.

  • Paul||

    There is an unrelenting desire to fix the internet. The prospect is becoming so delicious to lawmakers, I'm not sure it's a tide we can hold back.

    Never underestimate a government's desire to control or regulate something by sheer force of will.

  • ||

    Is it broken?

  • Paul||

    That which is unregulated is broken.

  • Joe M||

  • GW||

    Anti-piracy is a farce. There's NO way to stop it, and most companies who are victims of it have zero or inconsequential damages.

    They ought to treat media like a patent: it's essentially public domain, you just can't use it for commercial purposes and make money.

  • China||

    Sclew you.

  • Fucking Mongorians||

    You say that till we breach shitty wah! Then we see who sclews who, Chinese muhfuck!

  • Chinee||

    FUCKING MONGORIANS!

  • NotSure||

    I thought that American prisons are supposed to be overflowing, where are they going to place the extra millions of torrent users ?

  • ||

    Work Release programs, so they can rebuild America's crumbling infrastructure.

  • ||

    Most craven criminally stupid political class ever.

  • ||

    Federal court of appeals for DC upholds Obamacare, relying heavily on Scalia's concurrence in Gonzales v Raich.

    What gores around comes around.

  • GW||

    Wow. Gotta love this quote:

    The Framers, in using the term “commerce among the
    states,” obviously intended to make a distinction between
    interstate and local commerce, but Supreme Court jurisprudence
    over the last century has largely eroded that distinction.

    Read: We know what the Constitution says and what was intended, but the train is so far off the tracks we might as well continue. Where's the nearest cliff?

  • NL_||

    Disappointed when I saw no references to Somalia or Jack Sparrow. Wrong kind of piracy.

  • Blackbeard||

    Aarrrrgh!! Avast Ye maties!

  • chris||

    THAT is the arm of Vecna!

    Sad, but I'm a big enough geek to know that reference. Still got the first edition set of rule books.

  • Ska||

    Amazingly enough there are still some fellow nerds around here. Yesterday there was a magic missile reference, today there's this. And I know there have been a few Pathfinder references in the past as well. I'd bet Shadowrun would appeal to a lot of the commentators here, too.

  • Lord Humungus||

    I was going to make a Dragon magazine joke, but I thought I would just age myself.

  • PermaLurker||

    Hey some of us still treasure our Dragon magazine collection. The edition on Divine Curses was pure gold.
    But Dungeon was more useful...not sure if it was published in the States tho.

  • Gojira||

    Am I the only asshole who plays Warhammer? I never see those references on here : (

  • PermaLurker||

    Sigmar Heldenhammer feels your pain.

  • Gojira||

    Praise Khaine, somebody gets it!

  • R||

    BLOOD FOR THE BLOOD GOD!

    (No, I don't play it, but I hung around a few people who did and picked some stuff up).

  • Mr. Mark||

    This does sound like a stupid way of countering content theft.

    However, with regard to Ars Technica, that site reads like a cheerleading squad for the "I have a God-given right to bootleg software, movies, games, and music that I didn't pay for" crowd.

    Stealing is stealing is stealing.

    I would like to see criminal penalties for thieves, but I agree that the problems with this bill are unacceptable.

  • NotSure||

    Stealing is stealing, the crux of the issue is whether making a copy is stealing though.

  • Zuo||

    If I have a magical device that can clone me a perfect condition 1973 911 RS from taking a fancy picture of an existing one, would my car be "stolen"?

  • Mr. Mark||

    That would depend on the agreements entered when you purchased the Porsche.

    If you entered into an agreement at the time of purchase not to make copies of the Porsche without the express permission of Porsche AG, then yes, you would be stealing.

    Besides, it is impossible to make a perfect copy of a Porsche.

    Because there is NO SUBSTITUTE

    (naturlich)

  • cynical||

    "If you entered into an agreement at the time of purchase not to make copies of the Porsche without the express permission of Porsche AG, then yes, you would be stealing."

    Nope. Stealing is a criminal term, breach of contract is a civil term.

  • GW||

    The entire concept of them licensing their media is tantamount to theft anyway.

    Pot, meet kettle!

  • Mr. Mark||

    "The entire concept of them licensing their media is tantamount to theft anyway.

    Pot, meet kettle!"

    I make an application. I make it, so I own it.

    I offer to sell people copies of the application for $50 a seat. You can buy it, or not.

    So, Melvin Knupperslopp comes along and decides that he thinks it is wrong for evil capitalists to charge money for software, so he buys a copy, but then cracks the copy protection and throws it up on a site for free (but illegal) distribution to the world.

    That's stealing.

    I made it, I own it, I decide who gets it and how much they pay for it.

    If I want to charge $5 - that's up to me.

    If I want to charge $5,0000 - that's up to me.

    If I want to charge $5,000 and ban resale of the application - that's on me.

    If I want to charge $5,0000, ban resale, and require that users wear a yellow shirt and an orange sombrero when using my application on a Wednesday - that's up to me.

    Any breach of the license voluntarily entered into by a purchaser is theft.

    Nobody forces you to buy anything - except the U.S. government (social security, medicare, Obamacare...)

  • GW||

    Ahh, but that's not the way it works.

    I buy your software. You name the price. Obviously, I agree to the price, because I made the purchase. Totally voluntary. I go home, I start to install the software. In the process, I have to agree to your licensing terms. If I do not agree, no problem.

    I'm simply instructed to return the software to the place of purchase for a refund.

    And no retailer on the planet gives a refund on opened software.

    So, now I own a license to a piece of software I don't want, and I have no recourse to get my money back.

    See, I haven't been given the opportunity to agree to the license terms before making a "no refunds allowed" purchase. In fact, I haven't even seen the license agreement.

    here's an even better one. I buy your software. I agree to the licensing terms and use it. BUT, in order to get bug fixes and updates, I have to subscribe to a program with a hefty annual fee. So you can deliver me buggy software, and you don't have to fix it unless I pay you more money. At the point that I realize the software needs updates, I'm on the hook for more cash.

    NOW, the proper libertarian way to handle this is that maybe I got burned once, but I'll never buy your software again. Unfortunately for you, EXACT copies of your work are floating around on the internet, free for the taking. Since you won't give me an acceptable value for my money, I now take it for free. Value preserved.

    And the best part is, you haven't been damaged at all. Since I was never going to buy software from you again anyway, me having a pirated copy nets you exactly the same revenue: $0.

    Further, take music and movies. When I buy a movie, I'm not guaranteed to have any satisfaction with the product I purchased. If the movie sucks, too bad. Some of these movies that have been released over the years, I feel like the studio should be paying ME to watch it.

    If there was a way to stop this piracy, then other, typical market forces would change the industry for the betterment of consumers. But there's a path of least resistance approach here. Since an infinite number of identical copies of these works can be distributed, it's certainly not the same as me stealing your car because I like it.

    I'm not denying that it's theft. But it's certainly not black and white.

    I'll also point out that piracy has actually helped some software companies. It ensured such a large user base that competition was stifled. How do you think AutoCAD got to be THE standard in design software for years?

  • Mr. Mark||

    I don't defend the horrendous policies of many software vendors and retailers, but they aren't my policies and taking my stuff is theft.

  • cynical||

    No one's taking your stuff, though. They reconfigured their own matter and electrons.

    Most of what you know and believe, including the language you just used to express that thought, is the product of someone else's labor or creativity, and for most of it no one paid anything except the cost of the actual duplication.

    Besides, copyright isn't the right to keep some work private and attach terms and conditions to those who see it (that's an NDA or confidentiality agreement) -- it's the right to make a work public, and then demand that everyone else behave as though it is private. It's flashing people and demanding they avert their eyes. A coercive imposition, in other words.

    And while the legal concept of copyright has historically been fairly limited and arguably a net gain for society under a utilitarian analysis, the philosophical concept of ideas as property would be completely asinine if taken to the logical conclusion. For example, there's no reason that you should have a right only to exact or near-exact duplicates; even something that captures the gist of a work should be a violation of the effort and creativity you put into that work. Yet, that means that simply describing the plot of a book to a friend makes you a thief. The law says that short passages are fair use, but the moral principle says that every pop culture reference and movie quote uttered here is an act of theft. The moral principle makes no exception for parody, or for discussion -- it would make an excellent tool for censors and tyrants.

  • Trent||

    The solution lies in where the application's source code lives. If you put it on a disc and sell one, the work you've done now resides in the public domain. Any attempt at preventing that published material from spreading is like raking leaves on windy day.

    Which is why the smart programmers aren't allowing their source code to ever find the public domain anymore. They leave it on their own servers and charge a monthly fee for access, like WoW or 37Signals.

    The difference is just the location of your value. If a restaurant published all of their recipes for the world to see, people would copy them in their own kitchens to save money. The solution isn't to sue everyone who's baking your dish, it's to keep your valuable recipes hidden from public view, so they have to pay you to eat your dish.

  • Mr. Mark||

    "Which is why the smart programmers aren't allowing their source code to ever find the public domain anymore."

    And in the age of the data breach, I don't use the majority of SaaS products.

  • xyz||

    If you don't like the way computers work, build a better different computer.

    You're trying to achieve the impossible. Your revenue model is flawed.

  • cynical||

    Don't ever read Techdirt.

  • Crony Capitalist||

    "New Anti-Piracy Legislation Would Break the Internet Without Stopping Piracy"

    Feature, not bug.

  • ||

    Is that little butt-hole wearing a Sons of Anarchy vest?

  • Gus||

    Telling, that you would reduce him to your essential desire, a young boy's asshole.

  • Gojira||

    I saw that and wondered the same thing.

    If so, he needs a good ass-kicking.

  • Anonymous Coward||

    If that cut Bieber is wearing were any fruitier, it would be neon pink.

    NTTAWWT.

  • Marc Jacobs||

    Marc Jacobs designed for Marc Jacobs Handbag coveted clear structure, but also the essence of one of the many brand-name bags. But be concerned about is that he’s subsidiary brand Marc by Marc Jacobs. The younger you must not miss Marc by Marc Jacobs Bags. Especially the Marc by Marc Jacobs Handbag, fashion sun for you. Believe me, it really really good.

  • Robert||

    Theft is theft...as an artist I barter by allowing folks to play my music for exposure. They then direct a prospective buyer to my website. The Govt hates the term barter b/c it can't get its grubby little hands on a fixed sum of $$$

  • ||

  • ||

    The one thing that people are ignoring about the "if you buy my music, you're under contract not to copy it" is the fact that piraters aren't purchasing your music / movies or whatever, so they are under no obligation not to copy it. If someone who purchased a CD comes up to me and says "hey here's this CD I bought, you should listen to it, it's great!" If I say "awesome! I've been wanting to listen to that! Thanks!" Does that make me a thief? Or if someone who bought the CD makes 15 copies of it and hands it out on a street corner, do the people taking the copied CD's become thieves? No... If I am on a road trip with some friends and say "hey listen to these songs" am I now guilty of stealing? Are my friends guilty of stealing because they listened to the songs without purchasing them? What I live in a household with 3 other people (let's say my mom, sister, and brother) do each of us have to buy a copy of the same song if we want to listen to it? How about movies? Do we each have to buy copies of the movie before we can watch it together? The idea that pirating is going to bankrupt anyone in the music industry is ludicrous. The music / film industry is still making millions of dollars from concert tickets, theater sales, etc. Not to mention, there are still MILLIONS of people buying physical copies of cd's, blurays etc. Many times I will download a movie that I purchased before and have lost and don't want to fork out another 15 - 20 dollars to purchase another copy, or I bought it in a different format and don't want to purchase a copy in the new format I'd like. I've already forked over the money for it, I should be able to copy it and use it on any device I want to without fear of prosecution. The thing that the film and music industries are forgetting, is that there business is dependent on whether or not their customers want to purchase their products. If people are pirating their products they need to adapt to what their customer base wants, not try to attack it. Like GW stated, if I don't like the company I'm not going to support them and their atrocious business practices by purchasing their products. I have to say though, I am perfectly willing to pay for services like Spotify or Rhapsody. I haven't downloaded a pirated copy of any music since I signed up for Spotify. This is a prime example of the industry adapting to what their customers want, as are companies like netflix and hulu. If the companies would jump on board more with these types of things and stop being stingy with their newer content, they would have less people pirating their material, or it would just get to a point where it didn't matter. Lastly, I will say, attacking your customer base (with lawsuits etc) is a good way to lose that customer base. I will admit I have downloaded music / movies but I also frequently purchase music / movies as well. Finding out a friend or a family member (or even someone I don't really know..) is being sued by the RIAA or something just makes me not want to pay my money for their content.

  • Free Speech||

    The same way that radio, press and TV were all strangled and shoved into corporate pockets so is the fate of the internet...it's just a matter of time...after all, the help shouldn't be allowed to voice their opinions the little scallywag wannabe jump ups!

  • Jody||

    I hope the Canadian Government doesn't follow suit on SOPA and all the other censhorship/breaking the internet bills.

  • Cathie||

    The internet as it is, is so powerful as communication of ideas, I'd hate to see it contained and regulated. How to wreck something truly wonderful.

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