Imagine a world in which any intellectual property holder can, without ever appearing before a judge or setting foot in a courtroom, shut down any website's online advertising programs and block access to credit card payments. The credit card processors and the advertising networks would be required to take quick action against the named website; only the filing of a “counter notification” by the website could get service restored.
It's the world envisioned by Rep. Lamar Smith (R-TX) in today's introduction of the Stop Online Piracy Act in the US House of Representatives. This isn't some off-the-wall piece of legislation with no chance of passing, either; it's the House equivalent to the Senate's PROTECT IP Act, which would officially bring Internet censorship to the US as a matter of law.
Calling its plan a “market-based system to protect US customers and prevent US funding of sites dedicated to theft of US property,” the new bill gives broad powers to private actors. Any holder of intellectual property rights could simply send a letter to ad network operators like Google and to payment processors like MasterCard, Visa, and PayPal, demanding these companies cut off access to any site the IP holder names as an infringer.
The scheme is much like the Digital Millennium Copyright Act's (DMCA) "takedown notices," in which a copyright holder can demand some piece of content be removed from sites like YouTube with a letter. The content will be removed unless the person who posted the content objects; at that point, the copyright holder can decide if it wants to take the person to court over the issue.
Here, though, the stakes are higher. Rather than requesting the takedown of certain hosted material, intellectual property owners can go directly for the jugular: marketing and revenue for the entire site. So long as the intellectual property holders include some “specific facts” supporting their infringement claim, ad networks and payment processors will have five days to cut off contact with the website in question.
The scheme is largely targeted at foreign websites which do not recognize US law, and which therefore will often refuse to comply with takedown requests. But the potential for abuse—even inadvertent abuse—here is astonishing, given the terrifically outsized stick with which content owners can now beat on suspected infringers.
Blockade One thing private actors can't do under the new bill is actually block a site from the Internet, though it hardly matters, because the government has agreed to do it for them. The bill gives government lawyers the power to go to court and obtain an injunction against any foreign website based on a generally single-sided presentation to a judge. Once that happens, Internet providers have 5 days to “prevent access by its subscribers located within the United States to the foreign infringing site.”
The government can also go after anyone who builds a tool designed for the "circumvention or bypassing" of the Internet block. Such tools already exist as a result of the US government's ongoing campaign to seize Internet domain names it believes host infringing content; they can redirect visitors who enter the site's address to its new location. The government has already asked Web browser makers like Mozilla to remove access to these sorts of tools. Mozilla refused, so the new bill just tries to ban such tools completely. (Pointing your computer's browser to a foreign DNS server in order to view a less-censored Internet still appears to be legal.)
Search engines, too, are affected, with the duty to prevent the site in question “from being served as a direct hypertext link.” Payment processors and ad networks would also have to cut off the site.
Finally, and for good measure, Internet service providers and payment processors get the green light to simply block access to sites on their own volition—no content owner notification even needed. So long as they believe the site is “dedicated to the theft of US property,” Internet providers and payment processors can't be sued.
"Industry norms" The House bill is shockingly sympathetic to a narrow subsection of business interests. For instance, buried deep in the back of the >70-page document is a requirement that the US Intellectual Property Enforcement Coordinator prepare a study for Congress. That study should analyze “notorious foreign infringers” and attempt to quantify the “significant harm inflicted by notorious foreign infringers.” (Talk about assuming your conclusions before you start.)
The report, which is specifically charged to give weight to the views of content owners, requests a set of specific policy recommendations that might “encourage foreign businesses to adopt industry norms to promote the protection of intellectual property globally.” Should the bill pass, the US government would be explicitly charged with promoting private “industry norms”—not actual laws or treaties—around the world.
In the request for the report, we can also see the IP maximalist lobby preparing for its next move: shutting off access to US capital markets and preventing companies from "offering stock for sale to the public" in the US.
Call it what it is Not all censorship is bad—but we need to have an honest discussion about when and how to deploy it, rather than wrapping an unprecedented set of censorship tools in meaningless terms like "rogue site," or by calling a key section of the new bill the "E-PARASITE Act."
You don't have to support piracy—and we don't—to see the many problems with this new approach. Just today, the RIAA submitted to the US government a list of "notorious markets." As part of that list, the RIAA included "cyberlockers" like MegaUpload, which are "notorious services" that "thumb their noses at international laws, all while pocketing significant advertising revenues from trafficking in free, unlicensed copyrighted materials."
It's not hard to imagine how long it would take before such sites--which certainly do host plenty of user-uploaded infringing content--are targeted under the new law. Yet they have a host of legal uses, and cyberlockers like RapidShare have been declared legal by both US and European courts.
Not surprisingly, the new bill is getting pushback from groups like NetCoalition, which counts Google, Yahoo, and small ISPs among its members. "As leading brands of the Internet, we strongly oppose offshore 'rogue' websites and share policymakers' goal of combating online infringement of copyrights and trademarks," said executive director Markham Erickson in a statement.
"However, we do not believe that the solution lies in regulating the Internet and comprising its stability and security. We do not believe that it is worth overturning a decade of settled law that has formed the legal foundation for all social media. And finally, we do not believe that it is worth restricting free speech or providing comfort to totalitarian regimes that seek to control and restrict the Internet freedoms of their own citizens."
Dozens of law professors have also claimed the original PROTECT IP Act, which contains most of the same ideas, is unconstitutional. But the drumbeat for some sort of censorship is growing louder.
Photograph by Tyler Menezes Further reading
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