How SOPA will hurt the free web and Wikipedia

For the past several days, Wikipedia editors have been discussing whether to stage a protest against the proposed Stop Online Piracy Act (SOPA).  I’ve been asked to give some comments on the bill and explain what effect the proposed legislation might have on a free and open Internet as well as Wikipedia.  My goal in this blog post is to provide some information and interpretation that I hope will be helpful to Wikipedia editors as they discuss the bill.
SOPA has earned the dubious honor of facilitating Internet censorship in the name of fighting online infringement. The Wikimedia Foundation opposed that legislation, but we should be clear that Wikimedia has an equally strong commitment against copyright violations. The Wikimedia community, which has developed an unparalleled expertise in intellectual property law, spends untold hours ensuring that our sites are free of infringing content. In a community that embraces freely-licensed information, there is no room for copyright abuses.
We cannot battle, however, one wrong while inflicting another. SOPA represents the flawed proposition that censorship is an acceptable tool to protect rights owners’ private interests in particular media.  That is, SOPA would block entire foreign websites in the United States as a response to remove from sight select infringing material.  This is so even when other programs like the Digital Millennium Copyright Act have found better balances without the use of such a bludgeon. For this reason, we applaud the excellent work of a number of like-minded organizations that are leading the charge against this legislation, including the Electronic Frontier Foundation, Public Knowledge, Creative Commons, Center for Democracy and Technology, NetCoalition, the Internet Society, AmericanCensorship.org, and others.
On Tuesday, after receiving input on the original version of the bill, the House Judiciary Committee issued a new version of SOPA for its mark-up scheduled for this coming Thursday.  A vote on that mark-up may take place on the same day.   At the end of this article, I provide a summary of the most relevant parts of this new version of SOPA as well as a summary of the legislative process (which you can also follow here).
In honesty, this new version of the bill is better (and credit goes to the Judiciary staff for that). But, it continues to suffer from the same structural pitfalls, including its focus on blocking entire international sites based on U.S.-based allegations of specific infringement.  Criticism has been significant.[1]  Representative Darrell Issa, a California Republican, for example, felt the bill “retains the fundamental flaws of its predecessor by blocking Americans’ ability to access websites, imposing costly regulation on Web companies and giving Attorney General Eric Holder’s Department of Justice broad new powers to police the Internet.”
Members of our community are weighing whether a protest action is appropriate.  I want to be very clear: the Wikimedia Foundation believes that the decision of whether to stage a protest on-wiki, such as shutting down the site or putting a banner at the top, is a community decision. The Wikimedia Foundation will support editors in whatever they decide to do. The purpose of this post is to provide information for editors that will aid them in their discussions.
I’ve been asked for a legal opinion. And, I will tell you, in my view, the new version of SOPA remains a serious threat to freedom of expression on the Internet.

• The new version continues to undermine the DMCA and federal jurisprudence that have promoted the Internet as well as cooperation between copyright holders and service providers.  In doing so, SOPA creates a regime where the first step is federal litigation to block an entire site wholesale: it is a far cry from a less costly legal notice under the DMCA protocol to selectively take down specified infringing material.   The crime is the link, not the copyright violation.  The cost is litigation, not a simple notice.

• The expenses of such litigation could well force non-profit or low-budget sites, such as those in our free knowledge movement, to simply give up on contesting orders to remove their links.  (Secs. 102(c)(3); 103(c)(2))  The international sites under attack may not have the resources to challenge extra-territorial judicial proceedings in the United States, even if the charges are false.

• The new version of SOPA reflects a regime where rights owners may seek to terminate advertising and payment services, such as PayPal, for an alleged “Internet site dedicated to theft of U.S. property.”  (Sec. 103(c)(2))  A rights owner must seek a court order (unlike the previous version) (Sec. 103(b)(5)).  Most rights owners are well intentioned, but many are not.[2]  We cannot assume that litigious actions to block small sites abroad will always be motivated in good faith, especially when the ability to defend is difficult.

• Although rendering it discretionary (Secs.102(c)(2)(A-E); 103(c)(2)(A-B)), the new bill would still allow for serious security risks to our communications and national infrastructure. The bill no longer mandates DNS blocking but still allows it as an option.  As Sherwin Siy, deputy legal director of Public Knowledge, explained:  “The amendment continues to encourage DNS blocking and filtering, which should be concerning for Internet security experts . . . .”

• The Electronic Frontier Foundation advises that the new proposed legislation still targets tools that might be used to “circumvent” the blacklist, even though those tools are essential to human rights activists and political dissidents around the world.

More specifically with respect to Wikimedia, the new version is an improvement, but, in addition to the reasons listed above, it remains unacceptable:

• Wikipedia arguably falls under the definition of an “Internet search engine,”[3] and, for that reason, a federal prosecutor could obtain a court order mandating that the Wikimedia Foundation remove links to specified “foreign infringing sites” or face at least contempt of court sanctions.[4]  The definition of “foreign infringing sites” is broad[5] and could well include legitimate sites that host mostly legal content, yet have other purported infringing content on their sites.   Again, many international sites may decide not to defend because of the heavy price tag, allowing an unchallenged block by the government.

• The result is that, under court order, Wikimedia would be tasked to review millions upon millions of sourced links, locate     the links of the so-called “foreign infringing sites,” and block them from our articles or other projects.   It costs donors’ money and staff resources to undertake such a tremendous task, and it must be repeated every time a prosecutor delivers a court order from any federal judge in the United States on any new “foreign infringing site.” Blocking links runs against our culture of open knowledge, especially when surgical solutions to fighting infringing material are available.

• Under the new bill, there is one significant improvement.  The new version exempts U.S. based companies – including the Wikimedia Foundation – from being subject to a litigation regime in which rights owners could claim that our site was an “Internet site dedicated to theft of U.S. property.”  Such a damnation against Wikimedia could have easily resulted in demands to cut off our fundraising payment processors.   The new version now exempts U.S. sites like ours.   (Sec. 103(a)(1)(A)(ii))

In short, though there have been some improvements with the new version, SOPA remains far from acceptable. Its definitions remain too loose, and its structural approach is flawed to the core.  It hurts the Internet, taking a wholesale approach to block entire international sites, and this is most troubling for sites in the open knowledge movement who probably have the least ability to defend themselves overseas.  The measured and focused approach of the DMCA has been jettisoned.  Wikimedia will need to endure significant burdens and expend its resources to comply with conceivably multiple orders, and the bill will deprive our readers of international content, information, and sources.
Geoff Brigham
General Counsel
Wikimedia Foundation
 
[1.] http://www.cato-at-liberty.org/the-new-sopa-now-with-slightly-less-awfulness/ ;
http://cdt.org/blogs/david-sohn/1312proposed-revision-sopa-some-welcome-cuts-major-concerns-remain ;
https://www.eff.org/deeplinks/2011/12/sopa-manager’s-amendment-sorry-folks-it’s-still-blacklist-and-still-disaster
[2.] See http://www.chillingeffects.org/resource.cgi?ResourceID=101 (providing a list of articles documenting abuses that certain rights owners have engaged in within the DMCA context).
[3.] An “Internet Search Engine” is defined as “a service made available via the Internet whose primary function is gathering and reporting, in response to a user query, indexed information or web sites available elsewhere on the Internet.”  Sec. 101(15)(A).  This definition does not include services that retain “a third party that is subject to service of process in the United States to gather, index, or report information available elsewhere on the Internet.”  Sec. 101(15)(B).  Although not conceding the point, Wikimedia arguably does not appear to fall under this exemption.
[4.] Sec. 102(c)(3)(A)(i).  To ensure compliance with orders issued under Section 102, the Attorney General may bring an action for injunctive relief against any Internet Search Engine that knowingly and willfully fails to comply with the requirements of section 102(c)(2)(B) to compel such entity to comply with such requirements.
[5.] Generally speaking, a “foreign infringing site” is any U.S.-directed site, used by users in the United States, being operated in a manner that would, if it were a domestic Internet site, subject the site to liability for criminal copyright infringement, as well as other federal copyright or trade secret violations.  See Sec. 102(a)(1-2).

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H.R. 3261 – STOP ONLINE PIRACY ACT

Section 102

A “foreign infringing site” is a:

• U.S. directed site:
• Definition: Foreign Internet site used to conduct business directed to U.S. residents OR that otherwise demonstrates the existence of minimum contacts sufficient for the exercise of personal jurisdiction over the owner or operator of the Internet site consistent with the U.S. Constitution; according doesn’t not cover such sites as .com, .org, .biz, etc.;
• Used by users in the U.S.; and
• Operated in a manner that would, if it were a domestic Internet site, subject it (or its associated domain name) to:
• Seizure or forfeiture in the U.S. in an action brought by the Attorney General, by reason of an act prohibited by sections 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of 18 U.S.C.; or
• Prosecution by the Attorney General under sections 1204 of title 17, United States Code, by reason of a violation of section 1201 of such title.

If a foreign Internet site is a “foreign infringing site,” the Attorney General (AG) can:

• Commence an action in personam against a registrant of a domain name used for the foreign infringing site OR an owner or operator of a foreign infringing site.
• Commence an action in rem against the foreign infringing site or the foreign domain used by such site if it cannot commence an action in personam.

On application of the AG, after commencement of either of the above actions, the court may issue a temporary restraining order, a preliminary injunction, or an injunction against:

• A registrant of a domain name used by the foreign infringing site or an owner or operator of the foreign infringing site if the action is in personam; or
• The foreign infringing site or the domain name used by such site, to cease and desist from undertaking any further activity as a foreign infringing site if the action is in rem.

After an order is issued and served, the AG can require the following of:

• Internet search engines:

• Definition: a service made available via the Internet whose primary function is gathering and reporting, in response to a user query, indexed information or Web sites available elsewhere on the Internet and does not include a service that retains a third party that is subject to service in the U.S. to gather, index or report information available elsewhere on the Internet.
• Measures: Technically feasible and “commercially” reasonable, and taken as expeditiously as possible, rather than within 5 days.
• Order: Applicable to search engines must be narrowly tailored to be consistent with the First Amendment as the least restrictive means of achieving the goals of this Title.

• Service Provider:

• Measures: Least burdensome, technically feasible and reasonable to prevent resolving to the foreign infringing site domain name’s IP address, taken as expeditiously as possible, rather than within 5 days.

• Payment network providers/ Internet advertising services:

• Measures: Technically feasible and “commercially” reasonable to halt payment processing, and taken as expeditiously as possible, rather than within 5 days

Section 103

Definitions were changed and none of the Wikimedia.org properties (or any other U.S. registered sites) are covered by this section.

New definition of “Internet site dedicated to theft of U.S. property”:

• U.S. directed site OR Site for which the registrant of the domain name used, and the owner or operator are not located and cannot be found within U.S.;
• Wikimedia is outside of this definition because based on the “U.S. directed site” definition outlined above; Wikimedia is not a foreign Internet site.
• Site is used by users within the U.S.; and
• Site is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by operator or another acting in concert with that operator primarily for use in, offering goods or services in violation of sections 501 or 1201 of title 17 or certain provisions of the Lanham Act OR 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, as shown by clear expression or other affirmative steps taken to foster such violation.

Qualifying plaintiff:

• Definition has been narrowed down to be “any person with standing to bring a civil action for violations described in paragraph 1(C),” which requires infringement, rather than any holder of intellectual property rights harmed by activities of the site.

SOPA Legislative Process [1]

 

House

• Full committee markup (Thursday)

• Members of the committee study the viewpoints presented in detail. Amendments may be offered to the bill, and the committee members vote to accept or reject these changes.
• At the conclusion of deliberation:
• A vote of committee members is taken to determine what action to take on the bill.
• It can be reported, with or without amendment, or tabled (which means no further action on it will occur).
• If no vote is taken, another markup will be scheduled

• Manager’s Amendment

• Possible amendments to the bill that were not voted on in committee.
• This new bill is the one that is submitted to the floor.

• Rules Committee Hearing

• Determines whether the bill will be considered under a closed rule (no amendments), an open rule (any amendment in order), or a modified closed rule (in which only some amendments are in order).

• Floor time (probably not until early January):

• If the bill is voted on and approved to move to the Floor, floor time must be scheduled.
• Vote to recommit: vote to send the bill back to committee might be requested.
• Vote on final passage: if the bill is voted on and passed by the House, it moves out to conference committee.
• It can also be sent back and forth between the House and Senate in order to avoid a conference.

Senate

• The bill is already out of Committee

• Hold on the bill:
• Senator Wyden has placed a hold on the bill
• Senator Reid can override the hold or call a cloture vote to defeat it.

• Manager’s Amendment

• Possible amendments to the bill that were not voted on in committee.
• This new bill is the one that is submitted to the floor

• Floor time (probably early next year):

• If the hold is defeated or overridden, then floor time must be scheduled.
• Bill voted on by roll call vote, voice vote, unanimous consent, or division.
• If the bill is passed, it is sent out to conference committee.
• It can also be sent back and forth between the House and Senate in order to avoid a conference.

Conference Committee

• Once a bill leaves the House and the Senate, it must be reconciled if anything in the two versions of the bill is different otherwise it is sent to the President (see below)

• The house in which the bill originated is given a copy of the bill with its differences.
• If the changes are minor, they might be accepted by the originating house with no debate.
• If changes are of a more substantial nature a conference is called.

• The conference can be closed and informal or open and very formal.

• Following negotiations, the managers make reports back to their houses.  If they are able to agree on the bill, the bill is re-voted upon in both houses.
• If they were able to agree only on some parts of the bill or unable to agree at all, the bill may go back to a new conference committee, be referred back to the committees in the two houses, or it may just die because the differences are too vast to bridge.

President

• Officially, all bills that pass both houses are signed by the Speaker of the House and the President of the Senate before being presented to the President.
• This process could delay a bill a day or two.

• Then, the bill is delivered to the President.
• The President may sign the bill at any time after its deliverance.
• If it sits unsigned for more than a 10-day period, it becomes law regardless of his signature or not.
• The exception to this 10-day period is a pocket veto, in which the President can kill a bill if it goes unsigned and Congress adjourns prior to the 10-day time limit.
• If the President vetoes the bill, a veto message is sent back to Congress.
• The two houses of Congress may decide to revote, and two-thirds is needed to override the veto and have the bill become a law.
• If no immediate revote is taken, the bill can be tabled for later vote or sent back to the committee to have further work done.
• If a vote is taken to override, and the vote fails, the bill dies.

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[1] http://www.house.gov/content/learn/legislative_process/; http://www.usconstitution.net/consttop_law.html.