Jan 182012
 

Much has been made in recent days about announced amendments to SOPA in response to the effective advocacy efforts of technology and internet companies over the winter holiday period. A review of recent press and advocacy announcements sheds a little light on what is likely out, and still in, the legislation as it stands.The most recent SOPA text is the Managers Amendment, introduced December 12, 2011 (see original bill, introduced October 26, 2011). In the Senate, the official text is still the PROTECT IP Act as reported to the Senate on May 26.

The December SOPA manager’s amendment included some significant changes, most notable eliminating the ability to cut off a site after a mere notice of alleged infringement. But the bill was widely criticized (e.g. from PK and EFF) for keeping its most onerous provisions.

A series of recent public releases by Rep. Lamar Smith and Sen. Pat Leahy suggest the bills may be further amended to take out DNS blocking blacklists from the law. This follows the statement opposing the bills from the White House and six key senators. The momentum on the bill appears to be shifting, with several new senators voicing opposition, including several original bill sponsors. In the house, Rep. Issa explained that Majority Leader Cantor promised to not bring the bill to the House floor before a new consensus is reached.

Public interest groups and technology companies working on the bill have highlighted key problems still remaining, even after DNS blocking is removed. They include:

  • The bills still appear to include search blocking, which has been widely criticized as a new and expansive form of government censorship of the internet. It is noteworthy that the DMCA already covers search engines, meaning there is an existing means to remove links to copyright infringing material on foreign sites.
  • The bill still has a private right of action which may embolden content providers to sue ad networks and payment processors through the kind of aggressive and far reaching test litigation that has made the RIAA a bad word to so many. It has been noted that the private right of action may allow content providers to bypass DMCA procedures and safe harbors.
  • The bill still contains murky definitions that threaten U.S. sites and sites that are not dedicated to copyright infringement. For example, ccTLDs of domestic sites are not excluded from the definition of “foreign site,” a “site dedicated to infringement” can be so labeled if it “facilitates or enables” infringement, rather itself violating any law, even if it is in compliance with DMCA safe harbors.
  • Finally, there continues to be a strong incentive for private censorship in the bill. By providing complete immunity for voluntary acts of censorship, the bill may create pressure for search engines, website hosts and others to blacklist content without any due process of law. And, as reported by Sherwyn Siy at Public Knowledge, the language of the bill is so broad as to appear to extend immunity event for censorship performed for anti-competitive reasons (e.g. a cable company’s refusal to allow access to legal competing suppliers of video content).

 

 

Much has been made in recent days about announced amendments to SOPA in response to the effective advocacy efforts of technology and internet companies over the winter holiday period. A review of recent press and advocacy announcements sheds a little light on what is likely out, and still in, the legislation as it stands.

The most recent SOPA text is the Managers Amendment, introduced December 12, 2011 http://judiciary.house.gov/hearings/pdf/HR%203261%20Managers%20Amendment.pdf. The original bill, introduced October 26, 2011, http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.3261. For the Senate copy, the official text is still the PROTECT IP Act as reported to the Senate on May 26, http://thomas.loc.gov/cgi-bin/query/D?c112:2:./temp/~c112SyL59R

But a series of recent public releases by Rep. Lamar Smith and Sen. Pat Leahy suggest the bills may be further amended to take out DNS blocking blacklists from the law. This follows the statement opposing the bills from the White House and six key senators, as well as Rep. Issa’s statement that Majority Leader Cantor promised to not bring the bill to the House floor before consensus is reached.

The public interest groups and technology companies working on the bill have highlighted a few key problems still remaining, even after DNS blocking is removed.

The bills still appear to include search blocking, which has been widely criticized as a new and expansive form of government censorship of the internet. It is noteworthy that the DMCA already covers search engines, meaning there is an existing means to remove links to copyright infringing material on foreign sites.

The bill still has a private right of action which may embolden content providers to sue ad networks and payment processors through the kind of aggressive and far reaching test litigation that has made the RIAA a bad word to so many. It has been noted that the private right of action may allow content providers to bypass DMCA procedures and safe harbors.

The bill still contains murky definitions that threaten U.S. sites and sites that are not dedicated to copyright infringement. For example, ccTLDs of domestic sites are not excluded from the definition of “foreign site,” a “site dedicated to infringement” can be so labeled if it “facilitates or enables” infringement, rather itself violating any law, even if it is in compliance with DMCA safe harbors.

Finally, there continues to be a strong incentive for private censorship in the bill. By providing complete immunity for voluntary acts of censorship, the bill may create pressure for search engines, website hosts and others to blacklist content without any due process of law. And, as reported by Sherwyn Siy at Public Knowledge, the language of the bill is so broad as to appear to extend immunity event for censorship performed for anti-competitive reasons (e.g. a cable company’s refusal to allow access to legal competing suppliers of video content).

For more, see the following links of civil society comments on last weekend’s announcements:

· John Bergmeyer – Senator Leahy’s Promise to “Fix” PIPA Falls Short” http://publicknowledge.org/blog/senator-leahys-promise-fix-pipa-falls-short

· EFF – “Signs of progress on the blacklist bills, but the fight continues” https://www.eff.org/deeplinks/2012/01/signs-progress-internet-blacklist-bills-fight-continues

 

Analysis of the changes in the SOPA managers’ amendment:

· Sherwin Siy http://publicknowledge.org/blog/managers-amendment-sopa-doesnt-fix-whats-aili

· Corrine McSherry

Much has been made in recent days about announced amendments to SOPA in response to the effective advocacy efforts of technology and internet companies over the winter holiday period. A review of recent press and advocacy announcements sheds a little light on what is likely out, and still in, the legislation as it stands.

The most recent SOPA text is the Managers Amendment, introduced December 12, 2011 http://judiciary.house.gov/hearings/pdf/HR%203261%20Managers%20Amendment.pdf. The original bill, introduced October 26, 2011, http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.3261. For the Senate copy, the official text is still the PROTECT IP Act as reported to the Senate on May 26, http://thomas.loc.gov/cgi-bin/query/D?c112:2:./temp/~c112SyL59R

But a series of recent public releases by Rep. Lamar Smith and Sen. Pat Leahy suggest the bills may be further amended to take out DNS blocking blacklists from the law. This follows the statement opposing the bills from the White House and six key senators, as well as Rep. Issa’s statement that Majority Leader Cantor promised to not bring the bill to the House floor before consensus is reached.

The public interest groups and technology companies working on the bill have highlighted a few key problems still remaining, even after DNS blocking is removed.

The bills still appear to include search blocking, which has been widely criticized as a new and expansive form of government censorship of the internet. It is noteworthy that the DMCA already covers search engines, meaning there is an existing means to remove links to copyright infringing material on foreign sites.

The bill still has a private right of action which may embolden content providers to sue ad networks and payment processors through the kind of aggressive and far reaching test litigation that has made the RIAA a bad word to so many. It has been noted that the private right of action may allow content providers to bypass DMCA procedures and safe harbors.

The bill still contains murky definitions that threaten U.S. sites and sites that are not dedicated to copyright infringement. For example, ccTLDs of domestic sites are not excluded from the definition of “foreign site,” a “site dedicated to infringement” can be so labeled if it “facilitates or enables” infringement, rather itself violating any law, even if it is in compliance with DMCA safe harbors.

Finally, there continues to be a strong incentive for private censorship in the bill. By providing complete immunity for voluntary acts of censorship, the bill may create pressure for search engines, website hosts and others to blacklist content without any due process of law. And, as reported by Sherwyn Siy at Public Knowledge, the language of the bill is so broad as to appear to extend immunity event for censorship performed for anti-competitive reasons (e.g. a cable company’s refusal to allow access to legal competing suppliers of video content).

For more, see the following links of civil society comments on last weekend’s announcements:

 

Analysis of the changes in the SOPA managers’ amendment:

https://www.eff.org/deeplinks/2011/12/sopa-managers-amendment-sorry-folks-its-still-blacklist-and-still-disaster

· Monica Ibrahim (entertainment attorney) http://underdevelopmentlaw.com/update-sopas-managers-amendment-and-digital-distribution/

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  11 Responses to “SOPA Revisions Leave Many Concerns in Place”

  1. […] Sean Flynn. “SOPA Revisions Leave Many Concerns In Place.” January 18, 2012. […]

  2. $47 million.

    Let me say that again:

    $47 million.

    With our national debt, does it look like we have the kind of money to be anal-retentive? And what happened to America, land of the free? Freedom of speech? I’m so tired of the government. All the public receives is lies…. and when the truth leaks, the government tries to shut up the only people who tell the truth. This is absolutely disgusting.

  3. […] number of problems remain, says Sean Flynn at InfoJustice.org, […]

  4. […] backers demand a denunciation is clear, no a single else seems to agree. As law highbrow Sean Flynn noted today, “For example, ccTLDs [country formula top-level domains, similar to .uk or.us] of made […]

  5. […] number of problems remain, says Sean Flynn at InfoJustice.org, […]

  6. Mr. Flynn,

    It is simply wrong to state that under SOPA “a ‘site dedicated to infringement’ can be so labeled if it ‘facilitates or enables’ infringement, rather itself violating any law, even if it is in compliance with DMCA safe harbors.”

    Simply facilitating or enabling infringement is not sufficient to be labeled as a site dedicated to infringing activity. More specific (bad) acts are needed.

    Under the SOPA manager’s amendment, in order for a site to be an “Internet site dedicated to theft of U.S. property”:

    1. the site must be 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 primarily for use in, offering goods or services in violation of
    (I) section 501 of title 17, United States Code, for purposes of comer
    cial advantage or private financial gain, and with respect toinfringement of complete or substantially complete
    works;
    (II) section 1201 of title 17, United States Code; or
    (III) provisions of the Lanham Act that prohibit the sale, distribution, or promotion of goods, services, or materials bearing a counterfeitmark, as that term is defined in section 34(d) of the Lanham Act (15U.S.C. 1116(d)) or section 2320 of title 18, United States Code;

    OR

    2) the operator of the site operates the 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 such violation.

    It is equally wrong to state that under PIPA “a ‘site dedicated to infringement’ can be so labeled if it ‘facilitates or enables’ infringement, rather itself violating any law, even if it is in compliance with DMCA safe harbors.”

    Under the PIPA, in order for a site to be an “‘Internet site dedicated to infringing activities”:

    1. the site must have has no significant use other than engaging in, enabling, or facilitating the
    (I) reproduction, distribution, or public performance of copyrighted works, in complete or substantially complete form, in a manner that constitutes copyright infringement under section 501 of title 17, United States Code;
    (II) violation of section 1201 of title 17, United States Code; or
    (III) 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

    2) the site must be designed, operated, or marketed by its operator or persons operating in concert with the operator, and facts or circumstances suggest is used, primarily as a means for engaging in, enabling, or facilitating the activities described under clauses (I), (II), or (III) of the preceding paragraph.

    While it is true that compliance with DMCA safe harbors alone is not dispositive under either SOPA or PIPA, it is patently false to indicate that simply facilitating or enabling infringement, may cause a site to be labeled as a dedicated to infringement under SOPA.

    Incidentally, I am not in favor of either bill, largely because I believe it will be ineffective. I believe neither bill (certainly not SOPA) will not prevent ad and payment processors from continuing to act in concert with rogue websites despite the bills’ intentions.
    I have sent a similar comment to Nate Anderson at Ars Technica who quoted and linked to your erroneous indication regarding the definition of a site dedicated to infringement.

  7. […] backers insist the language is clear, no one else seems to agree. As law professor Sean Flynn noted today, “For example, ccTLDs [country code top-level domains, like .uk or.us] of domestic sites are […]

  8. […] series of problems remain, says Sean Flynn during InfoJustice.org, […]

  9. […] number of problems remain, says Sean Flynn at InfoJustice.org, […]

  10. […] measure was removed after public outcry, but the continuing existence of search blocking and other onerous provisions only sparked more outrage from a growing contingent of concerned Web denizens. Many acknowledged […]

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