The Day the Internet Went Dark – Forcing SOPA/PIPA into the Spotlight: LXBN Roundtable

By | LXBN | January 24, 2012

On October 26th, 2011, the internet’s heart skipped a beat.  Not because of the normal shenanigans.  Twitter was up and running.  Google was still churning out search results, and even had this little doodle on their front page for the folks in Austria.  This time, something different was afoot. This feeling of unrest came in the shape of two proposed bills, the Stop Online Piracy Act (SOPA) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, or PROTECT IP Act, or as it’s most commonly referred to, PIPA.

While some dedicated internet users noticed the introduction of these bills on October 26th, it wasn’t until last week, when some of the largest and most influential websites took part in a “black-out”, that everyone else started paying attention.  Sites like WordPress and Google, commented on the issue through the usage of various media and inviting users to send messages to their Congressmen, while other sites like Wikipedia, Reddit, and Craigslist went completely dark as a form of protest against the legislation. “Blackout Day”, as it’s coming to be known, was designed to raise awareness about the potential impact of this legislation, and it appears to have worked.  Ryan Compton, an associate at DLA Piper and contributor to the firm’s blog RE:Marks on Copyright and Trademark, summed up the content of the two bills during the black-out on January 18th:

“Introduced by Senator Patrick Leahy, the Protect IP Act (PIPA) provides the U.S. Department of Justice with new tools to use against any site that “has no significant use other than engaging in, enabling, or facilitating” or that “facts or circumstances suggest is used, primarily as a means for engaging in, enabling, or facilitating” the distribution of illegal copies, counterfeit goods, or tools to defeat digital rights management systems. Courts may then, after notice to the registrant of the domain that directs to the site, (i) order DNS servers to block the offending domain name from directing users to the site, (ii) order payment providers to block all transactions with the site, (iii) order advertising services to block all advertising to the site, and/or (iv) order search engines (or potentially any other site with links to the allegedly offending site) to remove such links. The Senate is set to vote on PIPA on January 24th of this year.

Representative Lamar Smith introduced the Stop Online Piracy Act (SOPA) in the House last year, and debate in the House Judiciary Committee is set to resume this February. SOPA contains much of the same content as PIPA, and both are primarily focused on the theft of U.S.-generated intellectual property by sites based outside the United States.”

In essence, these bills aim to censor materials on the internet that infringe on copyrights.  The protest against the legislation by a few select sites must have piqued the interest of enough Congressmen (or their aides, who undoubtedly use Wikipedia to do a decent percentage of their research), because in the days after the blackout, public support for both of the bills nearly disappeared.  In the Senate, several co-sponsors of PIPA jumped ship, and Senator Harry Reid postponed the vote on the bill.  The very public nature of the bill has put Congress on the hot seat, but as Maxwell Kennerly, an attorney at The Beasley Law Firm, notes on his blog Litigation & Trial, some of the onus should also be put on the US Supreme Court:

“The problem, however, is that the Supreme Court has made quite clear that it interprets the Constitution under a “might makes right” philosophy, and so it has repeatedly ruled in favor of corporate interests, including those of major media companies, despite the plain meaning and intent of the Constitution.  In the Eldred case, for example, valiantly fought by Lawrence Lessig, the Supreme Court held that the phrase “for limited times” in the Constitution’s copyright clause (“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”) actually means forever.  The Supreme Court has even bent over backwards to go beyond the one-sided laws passed by Congress, and so in the Grokster case invented an entirely new common law cause of action —inducement to copyright infringement — that wasn’t even mentioned by the Copyright Act. All while the astonishingly punitive nature of copyright damages goes unchallenged.

….

Eric Goldman tells us not to blame the Supreme Court. Well, I do. The bulk of the attention is rightly on Congress for outsourcing their responsibilities to a for-profit industry, but let’s not forget that the supposed guardians of our constitutional liberties, the United States Supreme Court, has already told us that those liberties do not apply within the realm of copyright.”

Mr. Kennerly says as much in his post, but it bears reapeating.  Much of the narrative behind the opposition’s argument has centered around corporate interests buying votes and encroaching on personal freedoms for the sake of profit.  The fact that these bills are supported by several major media conglomerates, including a host of companies from the music and movie industries, lends some legitimacy to these claims.  Elements of the legislation may be worthwhile, but the overall wording leads one to think that a much darker motive is behind both bills.  Seattle attorney John Whitaker says as much on his blog, Copyright Infringement Advisor:

“So, worst case, SOPA and PIPA allow the government not only to shut down any website that they can argue is “facilitating” infringement, they can also effectively seize the assets of those sites. Facilitating infringement?  Let’s think about that.  Megaupload is accused of facilitating infringement.  What does it mean to “facilitate” infringement?  Does Comcast “facilitate” infringement by providing you access to a pirate site?  Does Microsoft facilitate infringement by providing you with a free browser that you use to access that site?  How far can this go?  I guarantee you, if SOPA and PIPA pass, the government will start inventing ways in which companies “facilitate” infringement.

And what about the money?  Isn’t that really what this is all about?  It has to be, because no one has ever argued that the actual master recordings of anything have ever been stolen.  So, of course, SOPA and PIPA allow the government to seize all the assets of the website operators.  Not just money, everything.”

Unfortunately, even as the opposition to SOPA/PIPA is celebrating a victory over corporate interests and keeping the web “free”, bills and international trade agreements that mirror the language heard in SOPA and PIPA are appearing with more frequency.  First, there is a bill that provides a more moderate alternative to SOPA and PIPA called the Online Protection and Enforcement of Digital Trade Act or OPEN (this post by David Kramer on Re:Marks on Copyright and Trademark offers a good primer on the bill). Next, there is the Anti-Counterfeiting Trade Agreement or ACTA, which, according to E.D. Kain on Forbes’s website, has the potential to be worse than SOPA or PIPA:

“Few people have heard of ACTA, or the Anti-Counterfeiting Trade Agreement, but the provisions in the agreement are just as pernicious as anything we saw in SOPA. Worse, the agreement spans virtually all of the countries in the developed world, including all of the EU, the United States, Switzerland and Japan.

Many of these countries have already signed or ratified it, and the cogs are still turning. The treaty has been secretly negotiated behind the scenes, with unelected bureaucrats working closely with entertainment industry lobbyists to craft the provisions in the treaty. The Bush administration started the process, but the Obama administration has aggressively pursued it.”

With corporate interests becoming more involved on the interent, regulation of some sort is inevitable.  The tone of the legislation is really what’s at stake.  I would be remiss if I didn’t point out one of my favorite posts from the LexBlog Network on this subject.  Travis Crabtree, an attorney with Looper Reed, has a very nuanced and thoughtful post on eMedia Law Insider about why he may not support either bill in their current form, but that the passage of a similar bill will happen, and we need to figure out what that bill will look like.

“Don’t get me wrong, the versions being discussed back in December appear flawed.  The Congressional hearing in December was comical when some Congressmen explained they don’t understand the Internet, how the law would work, but think this law should be implemented.  PIPA, the Senate’s version, was brough to the floor in two weeks with little to no debate because the Senate was sold on its ability to preserve American jobs without much deliberation.

Fortunately, everyone has taken a breather. The proposals are a decent starting point.  I applaud the Internetophiles for raising public awareness about these bills and challenging them.  Many of the controversial parts are being amended.  But, it is time folks accept the fact some version of the bill will become law.  It is time to stop waiving over the entire proposal with an American flag and yell the sky is falling.  Instead, point to a specific provision you don’t like, and suggest an alternative.”

I grew up on the internet.  As a child in the vastly underpopulated southwest region of Montana, instant messaging, e-mails, and surfing the web kept me connected.  In those days, the internet was its own little universe where the normal rules of society didn’t really apply.  As more people become a part of the internet community, the more we need a shift in that mentality. I agree with Mr. Crabtree insofar as it is no longer a viable option to keep the internet a sort of “wild wild west”.  At some point, copyright regulations are necessary, especially as the internet becomes a central part of our commons.  Unfortunately, these regulations are being written by people with little understanding of the internet and even less understanding of how their laws would be enforced. Lest we forget, the internet is still just a baby.  The laws governing interstate trade weren’t written in a day, so why is Congress in such a rush to do that with copyright laws on the internet?

If you’d like to check out more coverage (about the blackout and both bills) check out some other posts from the authors on the LexBlog Network: