The Walking Dead: SOPA and ACTA Will Rise Again

COICA, SOPA, PIPA, ACTA…the acronyms may change, but the threat to Internet freedom remains. The Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA) may have been shelved indefinitely weeks ago in response to the mass online blackout and day of action on January 18th that included Google, Reddit, Wikipedia, Wired, and thousands of other web sites and services. But SOPA and PIPA were only two recent examples of an ongoing campaign by the media industry and lawmakers to limit online civil liberties and undermine the Internet’s architecture in the name of curbing piracy. And as the specter of the Anti-Counterfeiting Trade Agreement (ACTA) looms over the European Union, it’s clear the battle is far from over.

ACTA’s roots can be traced back to October 2007, when the United States, the European Union, Switzerland, and Japan collaborated on its earliest language. Negotiated behind closed doors and largely kept under wraps save for a Wikileaks release of relevant documents and cables, the final draft requires that participating countries aggressively monitor Internet usage and take criminal action against individuals accused of “inciting, aiding and abetting” intellectual property infringement. It also calls for the establishment of a governing ACTA committee that exists outside of the World Trade Organization or the United Nations. As is the case with many of these efforts, what ACTA defines as infringement is excessively vague, but the means of enforcement is well-defined.

Anonymous’s ACTA explainer video:

To date, countries including the U.S., Australia, Canada, Singapore, South Korea and 22 member states of the European Union have signed the agreement. With a debate in the European Parliament over ratification coming in June, voices have dissent has surfaced, with California Congressman Darrell Issa stating that ACTA is “more dangerous than SOPA” and Slovenian Ambassador Helena Drnovšek Zorko expressing regret for signing ACTA. In a blog post she wrote in January, she stated that she did it “out of civic carelessness, because I did not pay enough attention. Quite simply, I did not clearly connect the agreement I had been instructed to sign with the agreement that, according to my own civic conviction, limits and withholds the freedom of engagement on the largest and most significant network in human history, and thus limits particularly the future of our children.”

Over the past week, thousands of protestors have taken to the streets of EU member nations such as England, Germany, Poland and the Netherlands to condemn the treaty, prompting countries including Germany, Poland, the Czech Republic and Slovakia to delay ratification of the agreement.

Photos from the ACTA protests throughout Europe:

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Photo from France protest by kalamun on Flickr.
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Photo from Frankfurt protest by Martin Schmitt on Flickr.
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Greens/EFA MEPs protest against ACTA at the European Parliament in Strasbourg. Photo by greensefa on Flickr.
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Photo from Stockholm protest by Christian Engström.
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Photo of London protest by amnestylondon.
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Photo of Paris protest by Remi Mathis.
 In an article for the Washington Post, Dominic Basulto struck upon what may be the most apt metaphor for these continued and dogged efforts. “SOPA and PIPA may have died on the Congressional steps, but they are like one of Hollywood’s most popular character types: zombies,” he writes. “If ACTA were a film, it would be called ‘Night of the Living Dead 2.’ And ACTA is not alone. There are other bills on the way that pose threats to the future of the Internet.”

They Won’t Stay Down For Long

Art by Dan Hipp.

Like the zombies of our worse movie nightmares, these bills never die, they just lie in wait before rising again. SOPA and ACTA are nothing new—they’re only escalations of an ongoing effort.

In September 2010, Senators Patrick Leahy and Orrin Hatch introduced the Combating Online Infringement and Counterfeits Act (COICA) into the Senate, which would have given the Attorney General the right to maintain a blacklist of domain names “dedicated to infringing activity.” Sites added to the blacklist would have had their domain names locked, be forced to cease operation, and Internet Service Providers, financial transaction providers and advertisers would have been required to block the sites. The bill never came to a full vote on the Senate floor due to bipartisan opposition.

It was then rewritten and renamed the PROTECT IP Act, better known as PIPA, which required less enforcement on the part of domain name registries and registrars, but broadly expanded the language surrounding infringement and parties subject to court orders, to also include search engines that listed the sites. In October 2011, Representative Lamar S. Smith introduced a related bill inspired by COICA into the House, the now-infamous Stop Online Privacy Act/SOPA.

As SOPA and PIPA began to face mass outrage, Senator Ron Wyden and Representative Darrell Issa introduced the Online Protection and Enforcement of Digital Trade Act (OPEN), a less draconian alternative bill that was supported by companies such as Google, yet received measured skepticism by online freedom advocates who found it better than the existing bills but still flawed.

Media industry organizations outright opposed the bill for different reasons, with the Motion Picture Association of America (MPAA) claiming that OPEN would enable search engines to be “portals to piracy” and if enforced, would “take too long to get to the criminals.” Organizations such as the MPAA are licking their wounds and calling for legislation that retains the drastic measures SOPA and PIPA called for. In a New York Times editorial, Recording Industry Association of America (RIAA) executive Cary H. Sherman accused prominent opponents to SOPA/PIPA such as Google and Wikipedia of “demagoguery.”


Image by opensourceway.

During an interview I conducted with her last week, Corynne McSherry of the EFF identified the running thread through all of the media industry’s proposed legislation: “What has happened thus far is that the big content companies have proposed so-called solutions that would hurt Internet architecture. It would balkanize the Internet, and The United States would see a very different Internet than Italy or France.”

Whatever the status of SOPA and PIPA, history and rhetoric strongly suggests that supporters in both the media industry and the federal government will introduce another bill in the near future with new language and branding that shares many of the flaws of earlier versions.

But such acronym-titled bills and treaties only represent one front on which various government entities and the entertainment industry are curtailing rights on the Internet in the name of stemming piracy. One of the most high-profile recent cases was the takedown of popular filesharing site Megaupload last month by the U.S. Department of Justice and the FBI for hosting content of dubious legality.

Megaupload is a unique case in that the site was a egregious flouter of copyright laws, and that the shutdown was a widely-publicized multi-department effort in response to a unsealed indictment handed down by a Virginia federal grand jury in January. Other such takedowns have been undertaken through more surreptitious and disquieting means.

In November of 2010, Immigration and Customs Enforcement (ICE), a federal law enforcement agency within the Department of Homeland Security (DHS), seized the domains of 82 sites for allegedly distributing infringing content as part of their Operation in Our Sites campaign. These included a number of popular hip-hop blogs such as dajaz1.com, which provided free downloads for mp3s of new tracks. In December of 2011, Mike Masnick at Techdirt stated “These weren’t the kinds of things anyone would expect, when supporters of these domain seizures and laws like SOPA and PROTECT IP talk of ‘rogue sites.’ Blogs would have lots of protected speech, and in the hip hop community these blogs, in particular, were like the new radio.”

ICE had a particularly shaky case. Even though the agency claimed that these sites were used “to commit or facilitate criminal copyright infringement” in their application for a seizure warrant, much of the allegedly-infringing music had been supplied by record labels and artists as a form of viral promotion. Dajaz1.com’s owner Splash provided a number of emails to The New York Times in December 2010 from record label employees and marketing street teams offering songs and requesting that they be posted to the blog. This is a common practice by the music industry, which regularly leaks new tracks to bloggers to build buzz while publicly pushing for draconian anti-piracy laws.

That didn’t stop ICE from abusing the prodigious liberties that the DHS is afforded. The agency sealed all the court documents related to the case for over a year, refusing to show lawyers representing various site owners any documents related to the case, while making counterfactual public statements and keeping the blogs offline, in a state of legal limbo. At Cnet, Declan McCullagh wrote “What’s unusual here is that normally U.S. law strongly discourages efforts to censor Web sites before a full trial can be held. But in the DaJaz1 case, a series of allegations of dubious reliability offered in an ICE affidavit were enough to censor a popular music blog.”

Still from Terry Gilliam's Brazil.

On December 8, 2011, 13 months after the seizure, ICE dropped the case. As Masnick stated at Techdirt, the case was like “something out of Kafka or the movie Brazil,” noting that “it should never have happened under the US Constitution.”

“Over the past two years we’ve seen a definite escalation of government efforts to go after online infringement,” McSherry said during our interview. “I’ve been practicing for about a decade, and I don’t think I’ve ever seen so many efforts by folks in DC and agencies such as Homeland Security.”

“There’s no question that sites were taken taken down in the raid that didn’t belong there,” McSherry adds. “When I look at Operation in Our Sites, I worry that if the government can’t be trusted to use the tools it already has, it shouldn’t be given new tools.” Moreover, she notes, such violations of civil liberties are “a pretty disturbing signal to send to the world.”

The precedent such cases set for broad powers being abused by government agencies, often due to incompetence, is disquieting when one considers the addition powers that efforts like SOPA or ACTA would allow.

Despite this legal disaster and increased congressional scrutiny, ICE has persisted with Operation in Our Sites, boasting in a November 2011 press release that it had seized 150 domains to date.

Existential Threats

Image by opensourceway.

Online piracy is one of those hot-button issues that inspire rabid debate and bad legislation. “Big content,” as the media conglomerates have become known in tech circles, want complete control of the distribution of their intellectual property, a desperate bid to shore up a business model fading in an era where information is abundant and infinitely replicable.

Adding insult to injury, many of the policymakers in favor of such legislation are woefully ignorant of how the Internet works, and some enjoyed generous campaign contributions from the media companies they call allies. Moreover, bills such as SOPA that aim to shut down sites through DNS blocking undermine the Internet’s very architecture and increase cybersecurity threats.

In the eyes of the big content companies, the casual ubiquity of online piracy poses an existential threat. The legitimacy of that argument is debatable, but that’s not really what’s at issue here: with efforts like ACTA and SOPA, the media industry and policymakers are essentially bringing multiple atomic weapons and a handful of dirty bombs to a knife fight.

More significant are the existential threats these efforts pose to civil liberties online. Anyone who produces content for the Internet, and everybody who shares or links to online content is a potential target—giant search engines like Google, Facebook and Twitter users, media organizations like The New York Times, non-profit publications like Shareable, and individual bloggers like Splash from DaJaz1.com.

Angry Zombie Birds art by Tomasz Kaczkowski 

The implications were perhaps best articulated by Peter Sunde, one of the founders of the torrent clearinghouse The Pirate Bay, in a guest column for Wired. “The problem here is that we’re allowing this dying industry to dictate the terms of our democracy,” Sunde writes. “We allow them to dictate new laws…that forbid evolution. If you don’t give up before you’re sued, they corrupt the legal system.” No matter what you think of online piracy in general and The Pirate Bay in particular, Sunde’s statement is shared by many who don’t share his interests.

You couldn’t get much further from Sunde ideologically than the conservative think tank The Cato Institute, but Julian Sanchez made a similar points in a post arguing against SOPA on Cato’s website. “Political actors—or special interest groups—who want to expand the scope of blocking will no longer have to justify putting in place a wholly new system of Internet blocking,” Sanchez wrote. “Instead, the rhetorical question will become: Now that we’ve got this whole filter architecture in place for music and movie pirates, how can we possibly justify not using it for sites that host terrorist propaganda or classified documents, for sites that implement a patented business model without permission, for sites enabling speech some U.S. court has held libelous, and for whatever new moral panic is gracing the cover of Time in five years.”

Viva la resistance!

Fortunately, while the threat is ever-present, a powerful resistance movement has coalesced.

Photo from New York SOPA protest by Alec Perkins on Flickr.

As demonstrated by the diverse array of forces aligned against SOPA, from giant tech companies to conservative think tanks to copyright revolutionaries, it’s clear that the resistance movement is not comprised of a homogenous group of grassroots freedom fighters. The interests of giant tech companies like Google are not the same as those of large non-profit websites like Wikipedia, or advocacy entities such as the EFF and Fight For The Future. And the interests of these groups are not necessarily shared by the masses wearing Guy Fawkes masks who have taken to the streets of the EU to protest ACTA.

But if these groups make for uneasy bedfellows, they have so far been able to rally their troops around a shared goal, and make for a powerful resistance movement. The challenge now is to harness the energy shared by this broad opposition to fight future threats.

“Organizations including the EFF are talking about what’s the way forward—how do we keep people mobilized,” says McSherry. “We won a battle but the war is not over, and it’s very important for Internet users to stay vigilant. That said, it is my guess that a lot of folks are feeling really good and empowered by the effect that the massive protests had.”

In McSherry’s view, organizing and protesting is not enough. Equally important is convincing creative producers and the interest groups who purport to represent them that the answer doesn’t lie in more legislation. “The answer to online infringement is not going to be found in DC—there is no legislative silver bullet for Hollywood,” she says. “The creative people who are part of RIAA and MPAA should be calling for new leadership. Their leadership is not helping them.”

Photo by laszy on Flickr.

As the twitching corpses of SOPA and PIPA are reanimated in the legislature behind closed doors, and ACTA lurches across the EU, it’s essential for all users of the Internet to remain vigilant in the face of future threats. But it’s also important to look to the artists and software developers who establishing alternative approaches to combating piracy. This is one of the EFF’s primary goals post-SOPA.

“We’re looking at people who are succeeding online by competing with piracy and offering something better,” McSherry says. “I’m thinking about Louis CK, who made two million dollars to his amazement, or the Humble Indie Bundles. These could all could be pirated, but the creators are making their content available, telling people to pay if they like the product, and they’re succeeding. That’s the future. Not every experiment is going to work, but we can be sure a new law is not going to work.”

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