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August 15, 2012
Six-Month Retrospective of SOPA's Demise [Forbes Cross-Post, A Month Late!] + SOPA/PROTECT-IP/OPEN Linkwrap #3
By Eric Goldman
[This post is composed of three parts. The first part, all 2,700 words of it, is a cross-post from Forbes last month assessing where we stood 6 months after January 18, 2012. Sorry it's taken me so long to repost it. The second part is my third (and possibly final) linkwrap of SOPA/PIPA/OPEN links. I collected most of these links in January and have been slowly accreting more over the past 7 months. As you can imagine, a linkwrap doesn't improve with age. At this point, they are mostly for historical value, but you might enjoy the stroll down memory lane nonetheless. The third part is a comprehensive index of our SOPA-related posts on the blog.]
Part 1: Celebrating (?) the Six-Month Anniversary of SOPA's Demise (Forbes Cross-Post)
Six months ago--January 18, 2012--was a major day in the Internet's history. Some of the most heavily trafficked websites went dark or rallied their users against proposed legislation called the Stop Online Piracy Act (SOPA) and its sister bill the Protect IP Act (PIPA). The resulting outcry effectively killed the legislation that day. But with 6 months of perspective, plus plenty of new developments, it's clear there may not be much to celebrate about the developments of January 18.
What Happened on January 18
January 18 witnessed some unprecedented political developments. In response to massive voter feedback to Congress, a remarkable 19 United States Senators (nearly 20% of all senators) either changed their position on PIPA (from supporting to opposing) or newly announced a position on PIPA by coming out opposed to it. I'm not aware of any other single day in American history when so many senators publicly changed their opinion on a pending bill in response to voter advocacy.
Even more remarkably, this meant consumers had squarely defeated a determined copyright owner lobby led by the MPAA, although they were hardly alone. (Trademark owners also supported the proposals, but they were less visible in the process). For decades, individual consumers have had virtually no voice in American copyright policy. Generally the process has been:
1) Copyright owners give lots of money to members of Congress.
2) Copyright owners then redeem this patronage by getting broad Congressional support for their legislative wish-lists.
3) The technology community, and other repeat-player groups that depend on third party copyrighted materials (like libraries), fight vigorously to make minor changes to the copyright owners' wish-list.
4) Congress passes the lightly modified proposal and then, feel self-satisfied, pats itself on the back for having engaged all of the relevant constituencies in a vigorous multi-stakeholder legislative process.
This cycle has played itself out a few dozen times over the decades, and SOPA/PIPA were well on their way to following this pattern--until January 18.
And then, an upset outcome. David defeated Goliath. The amateur boxer knocked out the undefeated heavyweight boxing champion. Copyright owners had never outright lost a legislative battle they choose to fight. Yet, on January 18, they did. And they lost that battle to consumers--the constituency who isn't even at the bargaining table. In the words of Vizzini from the Princess Bride: "Inconceivable!"
How January 18 Was a Turning Point
The defeat of SOPA/PIPA immediately shook the corridors of power and continues to ripple through policy circles. Two examples:
ACTA's Demise. The Anti-Counterfeiting Trade Agreement (ACTA) is a trade agreement putatively designed to encourage trans-border cooperation to fight counterfeiting. Unfortunately, ACTA did more than that, potentially upsetting existing delicate balances between IP owners and consumers. Worse, ACTA was negotiated virtually entirely out of the public eye. While industry insiders (such as the copyright lobby) had prominent seats at the table, consumers got very limited disclosures of the drafts and no meaningful opportunity to comment on the proposals. Thus, for consumers, ACTA had potentially unacceptable substantive terms and was developed via an unquestionably unacceptable process.
President Obama signed the agreement without getting Congressional approval, despite significant protests. Other countries started signing ACTA. ACTA looked like a fait accompli.
Then, partially inspired by the SOPA/PIPA protests in the United States, European consumers started protesting ACTA. Their voices were heard. The European Parliament overwhelmingly rejected ACTA, which most likely takes all of Europe out of ACTA--which, in turn, largely moots ACTA. There are still wranglings and shenanigans involving ACTA, so it's too early to declare it dead. Still, the most likely outcome is that European consumers' protests scuttled an otherwise unstoppable international trade agreement on IP issues--just like US consumers derailed SOPA/PIPA. Could SOPA have been the first spark to ignite effective consumer input into future IP policy-making worldwide?
No Legislator Wants to Be "SOPAed." Back in the United States, politicians are walking on eggshells. Multiple Washington DC insiders have told me that no legislator wants to be "SOPAed," presumably a verb for having massive consumer protests melting the legislator's phones. To avoid the risk of being SOPAed, I'm hearing that some legislators are changing their proposals--presumably to tone them down--before they even are introduced. So even without lifting another finger, consumers may be beneficially influencing the legislative process.
How January 18 Didn't Make a Difference at All
For all of that good news, I believe the better analysis is that the events of January 18 made no real difference. Some examples supporting my conclusion:
SOPA's Death = Status Quo. I can imagine some backroom Hollywood strategist shaking his head, thinking to himself/herself, "Those [insert pejorative expletive] shut down the Internet and melted the phone lines in Washington DC, and what did they get? NOTHING." For all of the work that went into the anti-SOPA/PIPA campaign, the reality is that its demise just preserved the status quo. As the maxim goes, it's a lot easier to kill legislation than to get it passed. And it's hardly easy to kill proposed copyright legislation; it took a favorable confluence of multiple things going right just to kill SOPA/PIPA. But in the end, all of that enormous effort didn't change anything.
Congress Is Making the Same Systematic Mistakes. Procedurally, the advocates of SOPA/PIPA made several mistakes. First, the substantive proposals massively overreached. Legislators' fear of being SOPAed reduces the chance that error will recur, at least in the short run.
Second, SOPA/PIPA would have created some serious technical problems that the legislators simply did not understand. In response to this glaring lack of knowledge, Rep. Chaffetz suggested that Congress should "bring in the nerds" to advise Congress on the technical implications of its proposals. Despite that suggestion, Congress continues to regulate the Internet without adequate guidance from "the nerds." For example, despite protests from many expert technologists, the House passed a cyber-security bill (CISPA).
Third, SOPA/PIPA were drafted largely in secret by a few legislators and a coterie of industry lobbyists who have bought access to the legislative process; once this cabal was satisfied, the bills were introduced and then fast-tracked for passage. Yet, amazingly, Rep. Lamar Smith--a key figure in the SOPA battles--announced he was introducing a bill (the IP Attache Act) resurrecting a small part of SOPA after preparing the bill behind closed doors, and then intended to fast-track the bill. (The amount of overlap between SOPA and the IP Attache Act is complicated;this BNA report tries to unpack the issue). As Techdirt's Mike Masnick asked rhetorically, "Dear Lamar Smith & House Judiciary: Have You Learned Nothing from SOPA?" So for all of the whispertalk that legislators are running scared of being SOPAed, at least some legislators still think it's OK to procedurally navigate controversial bills in a way that (deliberately?) suppresses the public's ability to participate in the process.
Plaintiffs Are Getting SOPA's Remedies (or Better) in Court. As I indicated, SOPA/PIPA's demise preserved the status quo--but the status quo isn't so great for consumers. Without any new legislation, IP owners are already getting extraordinary remedies in court that compare favorably to the remedies contemplated by SOPA/PIPA. My co-blogger Venkat Balasubramani and I have cataloged some of these cases. Typically these cases involve foreign defendants who don't show up, meaning that the court only hears one side of the story (the plaintiff's) and basically gives the plaintiffs whatever they ask for. In many cases, this includes court orders that purport to bind third party service providers (who also aren't in court to defend their interests), even though Federal Rules of Civil Procedure Rule 65 doesn't allow judges to tell non-litigants what to do.
In my "favorite" example, involving a Chinese website allegedly selling counterfeit cigarettes, the court ordered Western Union (who wasn't in court and wasn't a defendant) to interdict all money buyers were sending to the website and put it into a special account for an unspecified period of time. In other words, buyers--who may not have realized they were buying counterfeit goods--weren't getting their ordered cigarettes but also weren't getting their money back. Compare an alternative approach, where the court could have told Western Union to reject the payments and simply return the money to the buyers. Without buyers or Western Union appearing in court to defend their interests, the court overly catered to the plaintiffs' interests. So much for due process.
Until judges start pushing back on plaintiff demands in these cases where defendants no-show, and until judges become more circumspect about their ability to reach non-litigants under Rule 65, who needs SOPA/PIPA? IP owners can synthetically achieve the same or better results without a new statute.
The Obama Administration is Implementing SOPA Even Though Congress Didn't Approve It. Even though Congress did not approve SOPA/PIPA, the Obama administration repeatedly has been tone-deaf to consumer concerns about SOPA and its underlying policies. Three examples of the Obama administration's efforts to create SOPA-like outcomes through its executive branch powers:
* Megaupload prosecution. On January 19, the day after SOPA/PIPA melted down and the copyright lobby was publicly grumbling that their years of campaign contributions weren't buying the patronage they expected, the Obama administration's Department of Justice loudly announced the criminal prosecution of a foreign cyberlocker--one of the types of websites that SOPA/PIPA nominally targeted. In effect, copyright owners convinced the US government (at taxpayer expense!) to enforce SOPA-like remedies even without SOPA on the books. Worse, as we've seen in the past 6 months, the Megaupload prosecution is deeply troubled, and the DOJ has not looked good at any step in the prosecution. Personally, I believe that the prosecution was lawless from inception, a point I explained more fully on my blog.
* Domain name seizures. For a couple of years, the Department of Homeland Security's Immigration and Customs Enforcement (ICE) division has been seizing (without any judicial oversight) hundreds and hundreds of domain names it thinks are used for infringing conduct. The bad news: ICE's legal authority for such domain name grabs is dubious at best. (PIPA and SOPA would have codified the government authority for these ex parte domain name seizures). Worse news: ICE has been acting on unverified claims from self-interested copyright owners. We learned, for example, that ICE seized Dajaz1's domain name based on an unverified report from the RIAA; and when ICE asked for supporting verification (after it had already seized the domain name), the RIAA didn't produce anything for an entire year--at which point ICE simply gave Dajaz1 its domain name back, without an apology or an explanation. The worst news: ICE's Dajaz1-related court proceedings were conducted in secret, meaning Dajaz1 could not see the court file or respond to it because, as near as we can, the file sat in a clerk's desk drawer rather than in the normal place where files are stored. Secret judicial proceedings where the defendant has no ability to see the charges or respond to them? That sounds more like a Kafka book than the country I know and love.
* "Voluntary" industry initiatives. Obama's "IP Czar," Victoria Espinel, has been actively negotiating "voluntary" industry agreements that replicate some of SOPA's key features.
First, Espinel helped broker a "voluntary" agreement where Internet access providers agreed to implement a "graduated response" program. Effectively, the access providers will build a system to process copyright owners' claims (which usually will be automatically generated) of copyright infringement via peer-to-peer file sharing. Each notice against a user will count as a "strike." When users get too many strikes, the Internet access provider will progressively subject the user to more stringent discipline, including potentially terminating the user's Internet access account completely. Users can protest the strikes, but only via a kangaroo court which is not designed to let users win. Corynne McSherry and I previously explained the anti-consumer aspects of the graduated response deal.
The fact that Internet access providers agreed to this deal is fascinating. They were already legally immunized from copyright infringement liability for users' conduct in 17 U.S.C. Sec. 512(a); they agreed to implement a technical system at a not-inconsiderable expense to them; and the ultimate remedy of firing their customers will cost them money too. One has to wonder just how hard the Obama administration leaned on Internet access providers to do something so clearly contrary to their interests; and one further has to wonder why the Obama administration would favor something designed to stack the deck against consumers. Perhaps not including adequate consumer representation at the table had something to do with that.
Second, Espinel brokered a deal where advertiser and ad agency industry groups "voluntarily" encouraged their members to adopt policies against displaying ads on websites that facilitate infringement--another key component of SOPA. This was a little easier sale than the graduated response deal. One of the recommended policy terms is that advertisers shouldn't pay publishers who run their ads alongside infringing content. Well, naturally, the advertisers weren't opposed to anything that would let them get advertising they don't have to pay for. More troubling is the apparent intent to develop a blacklist of allegedly infringing websites that advertisers should cut off. It remains to be seen if the private blacklist will offer an appropriate level of public accountability, transparency and due process.
In a related development, Espinel is also pressuring Yahoo, Google, AOL, and Microsoft to cut off allegedly infringing websites from their ad networks.
The graduated response system hasn't come online yet, and it remains to be seen just how vigorously advertisers will undertake their implied promise to police publishers who are engaged in infringing activity. So it's not clear if these government-brokered voluntary agreements will amount to much. But the fact that the Obama administration is going around to industry groups asking them to do what SOPA would have required or coerced them to do is a good sign that the Obama administration plans to implement SOPA if Congress won't.
One more data point showing that the Obama administration hasn't internalized the messages of January 18. Its trade reps, especially US Trade Representative Ron Kirk, have mishandled the latest trade agreement negotiations for the Trans-Pacific Partnership (TPP), committing the same sins that poisoned ACTA. Just like ACTA, all of the negotiations have taken place in backrooms, with no consumer representation but plenty of industry lobbyists around the table. Furthermore, the process has been not transparent at all (despite Kirk's twisted insistence otherwise, using a "day is night" definition of transparency). Drafts have not been made available to the public, so outsiders can only speculate what's even being discussed. As the EFF asked, "Is the TPP--Framed as a '21st Century Agreement'--the Best Way to Build a 21st Century Society?" More than anything, January 18 was about consumers rejecting backroom policy-making designed to bypass democratic governance. Yet, that's exactly what the Obama administration keeps doing, over and over again.
Franklin D. Roosevelt once said:
[L]et us never forget that government is ourselves and not an alien power over us. The ultimate rulers of our democracy are not a President and Senators and Congressmen and Government officials but the voters of this country.
For one day, on January 18, we reminded our government of this fact. But the burden is on us--the voters--to make our voices heard again and again. One day isn't enough. If you don't like what you see from the system we have, you do have the power--and, I would argue, the responsibility--to remind your elected officials of your displeasure. In response to my unhappiness with some of my elected representatives' stances on SOPA and copyright issues, I've changed my votes in June--and my vote for President is up-for-grabs in November based in part on the candidates' stances on IP (an especially salient issue given how many times the Obama administration has sold out consumers on IP issues). If you believe the system needs fixing, I hope you'll send that message to the folks who are supposed to be working for you.
If You Want More
Part 2: Linkwrap
Problems with SOPA/PIPA
* Pinterest is a good example of an important new start-up that would never survive under SOPA/PIPA because a single copyright owner could shut down its service providers. (FWIW, Pintererst is also a good example of how the social networking space remains dynamic and competitive despite Facebook’s headstart).
* Techdirt: Website Censored By Feds Takes Up Lamar Smith's Challenge: Here's Your 'Hypothetical'
* Sen. Wyden: "If members of Congress better understood the central role that the Internet plays in their constituents’ lives – the hub through which Americans work, communicate, share, learn, create and enjoy entertainment – they would understand why their constituents fought so hard to protect it."
* Jack Balkin explains the freedom-of-speech problems with SOPA
* Gartner: Collective Punishment: SOPA and Protect-IP are Threats to NSTIC and Federated Identity
What Happened and Lessons Learned
* Eriq Gardner: Why Hollywood Is Losing the Public Relations War on Piracy. He cites three mistakes:
Mistake #1: Much of the legislation was negotiated behind closed doors.
Mistake #2: The legislation has been defended on broad generalities and dubious statistics.
Mistake #3: Hollywood has ceded the high ground on being an innovator and defender of speech.
* The Wrap: Sunk! How Hollywood Lost the PR Battle Over SOPA
* Talking Points Memo: a timeline of how the opposition against SOPA/PIPA succeeded
* Hollywood Reporter: The SOPA War: A Frantic Call, an Aborted Summit, and Dramatic New Details on How Hollywood Lost
* News.com: How Republican opposition derailed SOPA and Protect IP
* EFF recaps some of the consequences of January 18, the Great Internet Blackout, a historical day in many ways.
* Larry Downes: Who Really Stopped SOPA, and Why?:
to imagine that the millions of Internet users who took to the virtual streets over the last few months were simply responding to the clarion call of technology companies misses the real point–dangerously so....The bitroots movement wasn’t led by Google. It wasn’t led by anyone. Even to look for its leaders is to miss the point.... it’s already clear that the losers in the PIPA/SOPA fight have learned nothing from the profound activation of Internet users....The only place to really engage your new adversaries is where the live—online, in chat rooms and user forums and social networks, on Twitter and Facebook and Tumblr and Reddit and whatever comes next. If you want to understand what went so horribly wrong with your business-as-usual efforts, you’ll need to take up residence in the digital realm and learn its new rules of engagement.
* Macworld: Who was really behind the SOPA protests?
* HBR: The Real SOPA Battle: Innovators vs. Goliath
* Yochai Benkler: Seven Lessons from SOPA/PIPA/Megaupload and Four Proposals on Where We Go From Here
* Lesley Harris' lessons from the SOPA experience:
1) the online revolt against SOPA and PIPA was not a command and control operation
2) The dramatic online mobilization carries lasting implications for Internet policy.
3) A more cautious approach requires a more open process.
4) Ignorance about how the Internet works is no longer an option. [Eric's comments: I miss the Office of Technology Assessment]
5) Overreaching Internet related legislation is no longer a successful strategy.
6) The Internet community is borderless, and the whole world will be watching.
* Guardian: The online copyright war: the day the internet hit back at big media
* Chris Dodd of MPAA talks about his lessons learned--none of which involve actually improving the products and services offered to consumers.
* Hollywood Reporter: Sundance 2012: MPAA's Chris Dodd Calls Piracy Defeat a 'Watershed Event'
* NY Times: Hollywood is running scared. Snippets:
- “The grass roots they can generate is, frankly, concerning,” Cary Sherman, chairman and chief executive of the Recording Industry Association of America, said of the Internet community.
- the Web’s anti-SOPA message is “sexier” than the facts offered up by Hollywood.
- “Downloading stuff on the Internet for free is cool,” said a person close to Viacom, who spoke on the condition of anonymity so as not to jeopardize his relationship with the company. “Our message isn’t cool.”
Related: Politico: Hollywood to make over piracy message for D.C.
* Nice post by Sen. McCaskill about rethinking PIPA.
Related: A politician actually read the law professor letter against PIPA (which 100 law professors, including me, signed)--and was actually persuaded!
* Content owners are cutting off their donations to Obama over SOPA/PIPA. One Hollywood insider said "he and his fellow moguls won’t give any more money if they keep getting taken for granted," i.e., if Obama takes the money and doesn't deliver the results Hollywood demands.
Related: MPAA's Dodd threatens Obama's financial support due to SOPA. But where can Hollywood turn? All of the Republican presidential candidates opposed SOPA too. It must be unsettling for Hollywood to feel like it has no friends in Washington DC. Now they know how we've felt for decades!
* What reaches more people: a Wikipedia blackout, or a tweet from Kim Kardashian?
* EFF: Dear Hollywood: An Open Letter to the Hardworking Men and Women in the Entertainment Industries
* NY Times: On TV, Antipiracy Coverage May Include a Disclosure
* Hollywood is apparently telling DC lobby firms to drop Facebook as a client.
* In realpolitik terms, the OPEN Act is also dead.
* David Post on SOPA and the future.
* Eriq Gardner: SOPA Defeat Is Not the End Of Hollywood's Ramped-Up Fight Against Piracy
Also related: Boing Boing on Hollywood's unwillingness to let SOPA go.
More related: Hollywood Reporter: MPAA Chief Christopher Dodd Says SOPA War Isn't Over
* EFF: No more back room deals -- Users must have a voice in governing the Internet.
My take: it's not enough to bring the tech companies to the negotiating table (although that must happen too). Tech companies might inadvertently advance the interests of the Internet user community, but at best that's a happy coincidence. Policymakers need to hear from Internet users--the ones whose content will be removed; or the legitimate Megaupload users who had their data destroyed as a collateral damage of clumsily seizing the assets of a tech company.
* Ars Technica previews the rightsowners' policy wishlist. The only thing missing is a new pony. "Despite a reputation for working in smoke-filled rooms, rightsholders have generally been quite upfront about their enforcement goals. For a few years it involved suing everyone in sight, then it moved to graduated response, and now it means roping in all key Internet players."
* Mark McKenna: Don’t Stop at SOPA
* News.com: White House calls for new law targeting 'offshore' Web sites
* Techdirt: Congress Keeps Pushing Bad Copyright Bills: Senator Stabenow Wants To Expand Treasury/ICE To Go After 'Pirates'
* Reuters: "the Justice Department asked Congress for $5 million to hire 14 new employees, including nine attorneys, to focus on intellectual property crimes"
* Wired: Uncle Sam: If It Ends in .Com, It’s .Seizable
* Operation in Our Sites strikes again, this type cracking down on sites to stream the Super Bowl.
* ICANN: “Thought Paper on Domain Seizures and Takedowns”
* Press release: "ANA, 4A’s Provide Best Practices to Prevent Marketers’ Ads from Appearing on ‘Rogue’ Sites that Infringe Intellectual Property Rights." More: "Addressing online piracy and counterfeiting has been a strong priority for both the White House Office of the Intellectual Property Enforcement Coordinator (IPEC) and the Congressional International Anti-Piracy Caucus. They have urged ANA, the 4A’s, IAB and other industry groups to play an active role in this fight"
Adweek discusses efforts to build a private blacklist that could also be used by domain name registrars and payment service providers. Is that better, or worse, than a government-operated blacklist???
More on this point: Some ad networks plan to use technology to block ads from showing up on sites dedicated to infringement.
* News.com: White House pressures AOL, Google over pirate sites
Part 3: Index of Prior Posts
* Can Korean Copyright Owners Sue Australian Defendants in California? Judges Disagree--DFSB Kollective v. Bourne
* Trademark Trolling by SEO Consultant Provides Cautionary Anti-SOPA Tale (and Other Lessons)--Premier Pool Management v. Lusk
* Hermès Obtains (Ex Parte) $100M Award Against Alleged Counterfeiters--Hermès v. Does
* Comments on the Megaupload Prosecution (a Long-Delayed Linkwrap)
* Egregious/Overreaching Ex Parte Orders for Rightsowners Keep Coming -- Deckers and Richemont
* SOPA/PROTECT-IP/OPEN Linkwrap #2
* More on Ex Parte Cutoffs of Foreign "Rogue" Domain Names
* Does the House Judiciary Committee Debating SOPA Know What's Going On In the Courts?--Philip Morris v. Jiang
* If You Dislike SOPA, You'll Dislike This Case Too--True Religion v. Xiaokang Lei
* The OPEN Act: Significantly Flawed But More Salvageable Than SOPA/PROTECT-IP
* I Don't Heart SOPA or PROTECT-IP: A Linkwrap
* Ad Network Avoids Contributory Copyright Infringement for Serving Ads to a Rogue Website--Elsevier v. Chitika
* Court OKs Private Seizure of Domain Names Which Allegedly Sold Counterfeit Goods--Chanel, Inc. v. Does
* Why I Oppose the Stop Online Piracy Act (SOPA)/E-PARASITES Act
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