BUT FIRST, A HISTORY LESSON.....

SOPA and PIPA are designed to close existing loopholes in online piracy enforcement.  To explain how, I first have to talk about another law: the Digital Millennium Copyright Act , otherwise known as DMCA.

Enacted in 1998, DMCA was Congress's first attempt to deal with the brave new world of illegal file sharing. In a nutshell, it criminalized online copyright infringement while protecting "Fair Use" doctrine, as well as giving "safe harbor" to internet service providers (ISPs), websites and search engines which unknowingly hosted or linked to pirated material.

(I'll circle back to "fair use" and "safe harbor" later,  but keep these terms in your head.  They're really, really important - it's why YouTube, Facebook, Flickr and even small sites like this blog aren't sued out of existence every time someone uploads a photo or links to a movie clip.)

However, DMCA was limited. It only applied to domestic ISPs, websites and search engines. Why? Because US copyright law ends at our borders. Domestic plaintiffs can't collect damages for overseas copyright infringement.

Of course, the first thing online pirates did after DMCA became law was set up shop overseas and out of the reach of US courts.

So ten years later,  Congress passed another law, the PRO-IP Act, which increased penalties and gave new enforcement powers to Immigration and Customs Enforcement, the agency most recently known for mistakenly deporting a 14 year-old girl to Columbia. (...)  critics complained PRO-IP didn't solve the "foreign rogue websites" problem. Perpetrators - especially those operating overseas - disappeared easily, escaping fines and summary judgments, quickly setting up new and anonymous Internet storefronts at will. Even if found, there was often no way of tying the individuals who ran foreign sites to assets in the United States.

Got all that?

Good. Because this is where the fun starts.

SOPA AND PIPA TO THE RESCUE!

SOPA and PIPA are designed to do one thing and one thing only - tie online pirates to assets in the United States so our justice system can get at them to collect civil judgments and cut off sources of revenue.

Of course, making that happen is not so simple. The internet is a complicated, borderless thing which changes faster than a teenager's hormones on a Pepsi high.

So the bill's authors tried to come up with a number of different ways to skin the same cat.

  1. Extend the authority to seize domain names and IP addresses to foreign websites determined to be in violation US Copyright law.
  2. Compel domestic ISPs, websites and search engines to block internet access to any foreign websites determined to be in violation US Copyright law.
  3. Prosecute developers who offer products or services that could be used to  circumvent  the blockade of foreign websites determined to be in  violation US Copyright law.
  4. Compel domestic financial service providers (Paypal, Visa, Wells Fargo, etc....) and internet advertisers to close accounts and block payments to any  foreign websites determined to be in violation US Copyright law.

The bills also includes a provision the American Bar Association labels "a rather novel reinvention of online"market-based" enforcement" by allowing copyright owners and their agents to initiate a "private right of action" to seek termination of an infringing site's advertising and financial services.  

(...)


AND THIS IS WHERE IT ALL GOES SO HORRIBLY, HORRIBLY WRONG......

Even without SOPA/PIPA's First Amendment implications (you can read some pretty good arguments here, here and here) ,the bills as currently proposed are horribly flawed documents devised by people who either don't understand how the internet works, or worse, understand it all too well and are trying to game the system for unfair competitive advantage. (...)

As I said before, ICE has seized hundreds of domestic domains under the PRO-IP Act. Well, it turns out some site owners are fighting back, suing the government for violating their First Amendment rights, saying the law's "seize now, ask questions later" enforcement equals prior restraint. In at least one case, a judge agreed, throwing out part of the government's case and expediting the site owner's suit.

And then there's the Kafkaesque case of dajaz1.com, a popular hip-hop music site which had it's domain seized in 2010, then restored over a year later - all without a single charge being filed.

As the details came out, it became clear that ICE and the Justice Department were in way over their heads. ICE's "investigation" was done by a technically inept recent college grad, who didn't even seem to understand the basics of the technology. But it didn't stop him from going to a judge and asking for a site to be completely censored with no due process.

The site's lawyer, Andrew Bridges, filed a motion to get the site back. Instead of responding as the law required, the government stonewalled Bridges while they secretly pursued multiple filing extensions from the court in order to hold on to the site.

The government was required to file for forfeiture by May. The initial (supposed) secret extension was until July. Then it got another one that went until September. And then another one until November... or so the government said. When Bridges asked the government for some proof that it had actually obtained the extensions in question, the government attorney told Bridges that he would just have "trust" him.

You can read the whole story here.  It's not pretty. Eventually, the government unilaterally decided it didn't have probably cause after all and just dropped the case without comment. 

 (...)

SOPA/PIPA INTERFERES WITH U.S. CYBER SECURITY

First, by mandating provisions completely incompatible with next-generation internet security standards and secondly, by throwing US software developers into legal limbo.

It turns out targeting software which could potentially be used for circumventing blacklisted websites also means targeting the same security software we use to keep our personal computers safe from malware, networked businesses safe from denial-of-service attacks and even payments to online financial service providers like PayPal safe from theft.

Meanwhile, as legitimate software developers sit around twiddling their thumbs, 20 year-old hackers have already created workarounds to domain blocking in anticipation of SOPA/PIPA.

Have fun with that.

(....)