SOPA & PIPA: Déjà vu all over again

Gigi B. Sohn, President & CEO, Public Knowledge

vs.

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2001: Security Systems Standards and Certification Act 2002: Consumer Broadband and Digital Television Promotion Act

2001: Made general purpose computers & software illegal by mandating low-level DRM All online services have to respect and pass on DRM—this could have outlawed most user-generated content sites & web hosting 2002, same as 2001 but adds: Detailed pro-content industry Congressional findings Gave the Federal Communications Commission (!) authority over content protection technologies—to carry out this bill requires extensive government control over media distribution technologies broadcast flag

Sen. Hollings

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“This is an exceedingly moderate and reasonable approach...This bill is going to speed the entertainment content into the online broadband environment, create consumer demand and get broadband going.” Preston Padden “Dead on arrival in Judiciary.” Darrell Issa

Reactions to Hollings Bill

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2002: HR 5211, Limitation on Liability for Protection of Copyrighted Works on Peer-To-Peer Networks

legalizes black-hat hacking, malware, and viruses expressly permits content industry to intrude on and damage user computers allows destruction of user data, even when it does not infringe copyright broad immunity from other laws that might be violated

Rep. Berman

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Anticounterfeiting Amendments of 2002

Makes it a crime to traffic in “counterfeit labels, illicit authentication features…counterfeit documentation and packaging”

Gives copyright holders a private right of action if they are “injured” by the violation of this law

Sen. Biden

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2004: Intellectual Property Protection Act (originally the PIRATE Act)

Gets rid of “willfulness” requirement for some infringement penalties AG as private attorney Makes camcording a federal crime Makes fast-forwarding commercials illegal (by “codifying” already-existing right to fast-forward, which either does not implicate a 106 right or is a fair use, and conditioning it on not skipping commercials) Various penalty/enforcement/registration changes Orphan works!

Sen. Hatch

This mostly came back in 2006, but without orphan works or outlawing commercial-skipping

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2004: INDUCE Act

Makes “intentionally inducing” copyright infringement a crime. “intentionally induces” means intentionally aids, abets, induces, counsels, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability. “Nothing in this section shall enlarge or diminish the doctrines of vicarious or contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright infringement.”

Sen. Hatch

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2005: Digital Transition Content Security Act

Reps. Sensenbrenner and Conyers

Plugs the “analog hole” Micro-manages the technology that both content and CE industries may use (CGMSA+VEIL)

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2005: Family Entertainment and Copyright Act

Made camcording a felony New penalties for distributing pre-release works

Permitted technology to play DVDs without adult content (Clearplay) Signed April 27, 2005

Sen. Hatch

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2006: Audio Broadcast Flag Licensing Act

Broadcast flag plus DRM for terrestrial and satellite digital radio

Puts the FCC in charge of picking content protection technologies

Rep. Ferguson

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Rep. Conyers

2008: PRO-IP Act

Created Intellectual Property Enforcement Coordinator (IPEC) Enhanced forfeiture provisions led to today’s domain name seizures (few if any foresaw use of forfeiture in this fashion—the concern was physical property) Provisions that were stripped: •  AG becomes private attorney for copyright

plaintiffs •  increased penalties for DRM circumvention •  One CD = 10 works for penalties •  No need to register prior to criminal prosecution Signed into law October 13, 2008

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And Let’s Not Forget

•  FCC’s Broadcast Flag Rules (struck down in ALA v. FCC)

•  FCC Grant of Selectable Output Control Waiver to MPAA for “high value” content

•  “Three Strikes” Proposals

•  Proposed language in 2009 stimulus bill, NTIA BTOP rules and FCC net neutrality rules that would grant immunity from net neutrality rules for ISPs that block allegedly infringing content.

•  Immunity from other laws/regulations

•  Private right of action granted to copyright holders

•  Lowering standards for secondary liability

•  Reversing DMCA Sec. 512: intermediaries as copyright cops

•  Increasing forfeiture, enforcement, police powers

•  Increasing politicization of law enforcement

Roots of SOPA & PIPA

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I've long believed that piracy is largely a business model problem not a human behavior

problem. If you give people a legal way to consume the content they want, they will pay

for it. But when you make it impossible to legally consume the content they want, they

will pirate it.

Fred Wilson, Union Square Ventures January 3, 2012

Public Knowledge

Public Knowledge

Concern/Opposition To SOPA/PIPA (Partial List) ���Source: Center for Democracy & Technology http://bit.ly/vI8Ovv

Large Companies���Online Services & Websites���Facebook���Twitter���eBay���American Express���Mozilla���Zynga���Google���Wikipedia

Small Companies���Kickstarter���OpenDNS ���Namecheap���Quora���Hype Machine���BuzzFeed���deviantART���Grooveshark���Webs, Inc. ���Scribd reddit���MetaFilter ���Disqus���Etsy Public Interest and Non-Profit���Public Knowledge���

American Civil Liberties Union���Brookings Institute���Cato Institute���MoveOn.org���Democracy for America���Demand Progress���Fight for the Future���FreedomWorks���Tea Party Patriots���Heritage Foundation���Campaign For Liberty���Free Press���American Society of News Editors���Internet Archive���TechFreedom���Electronic Frontier Foundation���Center for Democracy and Technology������Human Rights Organizations���Human Rights Watch���Amnesty International ���Center for Media Justice���Reporters Without Borders���WITNESS������Industry Groups and Unions���Business Software Alliance���Computer & Communications Industry Association���Consumer Electronics Association���

Graphic Artists Guild���Writers Guild of America West

Venture Capitalists���Foundry Group���Union Square Ventures���Y Combinator���SV Angel ���Marc Andreesen and Ben Horowitz, Andreessen Horowitz���OATV���David Frankel and Eric Paley, Managing Partners, Founder Collective Artists���Future of Music Coalition���Aziz Ansari ���Big Boi ���Neil Gaiman���The Lonely Island���Jason Mraz���OK Go!���Amanda Palmer���Peter Gabriel ���Trent Reznor���Adam Savage (Mythbusters) ���Olivia Wilde Over 100 Law Professors ������Over 140 Technologists

 

Neither SOPA, [nor] PIPA….is a viable answer. We need to take a step

back to seek fresh ideas and new approaches.

Cary Sherman, New York Times

February 7, 2012

Public Knowledge

Public Knowledge

Thanks! All images from Wikimedia Commons