SOPA & PIPA: Déjà Vu All Over Again

Déjà vu all Over Again
Gigi B. Sohn, President & CEO, Public Knowledge
2001: Security Systems Standards and Certification Act
2002: Consumer Broadband and Digital Television Promotion A
Made general purpose computers & software illegal by
mandating low-level DRM
All online services have to respect and pass on DRM—
this could have outlawed most user-generated content
sites & web hosting
2002, same as 2001 but adds:
Detailed pro-content industry Congressional findings
Sen. Hollings
Gave the Federal Communications Commission (!)
authority over content protection technologies—to carry
out this bill requires extensive government control over
media distribution technologies
broadcast flag
Public Knowledge
Reactions to Hollings Bill
“This is an exceedingly moderate and reasonable
approach...This bill is going to speed the entertainment
content into the online broadband environment, create
consumer demand and get broadband going.” Preston
“Dead on arrival in Judiciary.” Darrell Issa
Public Knowledge
2002: HR 5211, Limitation on Liability for Protection of
Copyrighted Works on Peer-To-Peer Networks
legalizes black-hat hacking, malware,
and viruses
expressly permits content industry to
intrude on and damage user computers
allows destruction of user data, even
when it does not infringe copyright
broad immunity from other laws that
might be violated
Public Knowledge
Rep. Berman
Anticounterfeiting Amendments of 2002
Makes it a crime to traffic in “counterfeit
labels, illicit authentication
features…counterfeit documentation and
Gives copyright holders a private right of
action if they are “injured” by the violation
of this law
Sen. Biden
Public Knowledge
2004: Intellectual Property Protection Act
(originally the PIRATE Act)
Gets rid of “willfulness” requirement for some
infringement penalties
AG as private attorney
Makes camcording a federal crime
Makes fast-forwarding commercials illegal (by
“codifying” already-existing right to fast-forward, which
either does not implicate a 106 right or is a fair use, and
conditioning it on not skipping commercials)
Various penalty/enforcement/registration changes
Sen. Hatch
Orphan works!
This mostly came back in 2006, but without orphan works or
outlawing commercial-skipping
Public Knowledge
2004: INDUCE Act
Makes “intentionally inducing” copyright infringement a
“intentionally induces” means intentionally aids, abets,
induces, counsels, or procures, and intent may be
shown by acts from which a reasonable person would
find intent to induce infringement based upon all
relevant information about such acts then reasonably
available to the actor, including whether the activity
relies on infringement for its commercial viability.
Sen. Hatch
“Nothing in this section shall enlarge or diminish the
doctrines of vicarious or contributory liability for
copyright infringement or require any court to unjustly
withhold or impose any secondary liability for copyright
Public Knowledge
2005: Digital Transition Content Security Act
Plugs the “analog hole”
Micro-manages the technology
that both content and CE
industries may use
Reps. Sensenbrenner and Conyers
Public Knowledge
2005: Family Entertainment and Copyright Act
Made camcording a felony
New penalties for distributing prerelease works
Permitted technology to play DVDs
without adult content (Clearplay)
Sen. Hatch
Public Knowledge
Signed April 27, 2005
2006: Audio Broadcast Flag Licensing Act
Broadcast flag plus DRM for terrestrial
and satellite digital radio
Puts the FCC in charge of picking
content protection technologies
Rep. Ferguson
Public Knowledge
2008: PRO-IP Act
Created Intellectual Property Enforcement
Coordinator (IPEC)
Enhanced forfeiture provisions led to today’s
domain name seizures (few if any foresaw use
of forfeiture in this fashion—the concern was
physical property)
Provisions that were stripped:
•AG becomes private attorney for copyright
•increased penalties for DRM circumvention
•One CD = 10 works for penalties
•No need to register prior to criminal prosecution
Rep. Conyers
Signed into law October 13, 2008
Public Knowledge
And Let’s Not Forget
FCC’s Broadcast Flag Rules (struck down in ALA v. FCC)
FCC Grant of Selectable Output Control Waiver to MPAA
for “high value” content
“Three Strikes” Proposals
Proposed language in 2009 stimulus bill, NTIA BTOP rules
and FCC net neutrality rules that would grant immunity
from net neutrality rules for ISPs that block allegedly
infringing content.
Public Knowledge
Roots of SOPA & PIPA
Immunity from other laws/regulations
Private right of action granted to copyright holders
Lowering standards for secondary liability
Reversing DMCA Sec. 512: intermediaries as
copyright cops
Increasing forfeiture, enforcement, police powers
Increasing politicization of law enforcement
Public Knowledge
I've long believed that piracy is largely a
business model problem not a human
behavior problem. If you give people a
legal way to consume the content they
want, they will pay for it. But when you
make it impossible to legally consume the
content they want, they will pirate it.
Fred Wilson, Union Square Ventures
January 3, 2012
Public Knowledge
Concern/Opposition To SOPA/PIPA (Partial List)
Source: Center for Democracy & Technology
Large Companies
Online Services & Websites
American Express
Small Companies
Hype Machine
Webs, Inc.
Public Interest and Non-Profit
Public Knowledge
American Civil Liberties Union
Brookings Institute
Cato Institute
Democracy for America
Demand Progress
Fight for the Future
Tea Party Patriots
Heritage Foundation
Campaign For Liberty
Free Press
American Society of News Editors
Internet Archive
Electronic Frontier Foundation
Center for Democracy and Technology
Human Rights Organizations
Human Rights Watch
Amnesty International
Center for Media Justice
Reporters Without Borders
Industry Groups and Unions
Business Software Alliance
Computer & Communications Industry
Consumer Electronics Association
Graphic Artists Guild
Writers Guild of America West
Venture Capitalists
Foundry Group
Union Square Ventures
Public Knowledge
Y Combinator
SV Angel
Marc Andreesen and Ben Horowitz,
Andreessen Horowitz
David Frankel and Eric Paley,
Managing Partners, Founder Collective
Future of Music Coalition
Aziz Ansari
Big Boi
Neil Gaiman
The Lonely Island
Jason Mraz
OK Go!
Amanda Palmer
Peter Gabriel
Trent Reznor
Adam Savage (Mythbusters)
Olivia Wilde
Over 100 Law Professors
Over 140 Technologists
Public Knowledge
Visualizing SOPA on Twitter
Public Knowledge
Neither SOPA, [nor] PIPA….is a
viable answer. We need to take a
step back to seek fresh ideas and
new approaches.
Cary Sherman, New York Times
February 7, 2012
Public Knowledge
Public Knowledge