ARTS & FARCES internet

In an effort to eliminate any and all intellectual property infringement online, the entertainment cartel has this recurring wet dream of being allowed to interfere with the internet. Late last month US Representative Lamar Smith (R-Texas) unveiled the latest iteration of the cartel’s wet dream with his Stop Online Piracy Act (.pdf; 164KB) (SOPA).

SOPA, like its evil twin in the US Senate, the PROTECT-IP Act (.pdf; 61KB), would require internet service providers to monitor their customers online activity and “disappear” certain websites and “blacklist” entire domains. Ironically, Smith’s SOPA opens with the statement that the legislation should not be “construed to impose a prior restraint on free speech.”

Where the Digital Millennium Copyright Act (DMCA)—an extremely misguided piece of legislation in its own right—expressly does not require affirmative policing of copyright infringement, SOPA raises the stakes with just such a requirement. In short, SOPA would allow commercial entities to force advertisers to block advertising on internet sites alleged to contain infringing material. Corynne McSherry, writing for the Electronic Frontier Foundation, notes “the bill seems mainly aimed at creating an end-run around the DMCA safe harbors.”

SOPA would shutter not only internet services that are alleged to infringe a third-party’s intellectual property but those services that allegedly “engage in, enable, or facilitate” infringement or that allegedly have acted to “avoid confirming a high probability” of infringement. Under SOPA, any copyright holder can allege infringement against any internet service to payment processors such as Visa Mastercard, American Express, Paypal, etc.), advertising services, and search engines. Upon notification of the allegation, these businesses have five days to stop processing payments, stop serving advertising, and remove the allegedly infringing website from their databases, respectively. Never mind that all of this is based solely on a single allegation, no court has actually found infringement, and the safe harbor provisions of the DMCA would negate the allegation.

Opponents to the proposed legislation have taken advantage of the new White House petition website, within which the Obama administration promises to respond to grievances if 25,000 signatures are received. Unfortunately, Obama administration responses to previous petitions have been flat, canned, and non-responsive.

SOPA is scheduled to be heard by the House Judiciary Committee on 16 November. The PROTECT-IP Act is stalled in the US Senate.

For years the entertainment cartel has been nipping at the heels of the large internet service providers (ISPs)—AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon—to join in their war against copyright infringement. This week, the parties agreed to a “graduated response” process that will likely be implemented in early 2012.

For my lifetime, US law has shifted dramatically to solely benefit corporations. Now these corporations are bypassing the US legislative and executive branches completely and making their own agreements that carry the force of law; law for which no one has voted.

The “graduated response” process defines a series of six warnings by which an internet service provider will notify its customers of allegations of infringing behavior. “Graduated response” is, by definition, an escalating mechanism, starting with email notification and intensifying to “mitigation measures” including possible disconnection. Other “mitigation measures” include throttling a subscriber’s internet connection and redirecting all of an individual’s internet requests to a re-education website.

Nate Anderson, writing for Ars Technica, reports that the agreement is not substantially different that what internet service providers do now. When copyright holders discover IP addresses from file-sharing networks, they research the location where the IP address resolves, and then send an infringement notice to the internet service provider. The internet service providers have committed to forward such notices to subscribers—though, crucially, they won’t turn over actual subscriber names or addresses without a court order,” Anderson writes.

When I ran an open Wi-Fi network that was usable by anyone in the neighborhood (I live on the edge of a university campus and within metaphorical rock-throwing distance of five or six others), I got a couple of these notices from my internet service provider.

Anderson writes that this is the sanest approach yet employed by the entertainment cartel, but I’m not so sure. The cartel’s “mitigation measures” are taken as a result of unverified accusations from a party with a vested interest in the matter and are not adjudicated in a court. The only recourse available to the accused is to request an independent review for a US$35 filing fee. But the entertainment cartel and internet service providers haven’t specified who conducts the review. And as Anderson reports in another article for Ars Technica, there are only six permissible defenses the independent reviewer is allowed to consider:

1. Wrong account;
2. Unauthorized use of account;
3. Authorized use of the work;
4. Fair use;
5. File misidentification;
6. Work was published prior to 1923.

Who needs the Combating Online Infringements and Counterfeits Act (COICA)? Not the US government, that’s for sure. This week, Immigration and Customs Enforcement (ICE), a division of the US Department of Homeland Security seized the domains of as many as 70 allegedly illegal file-sharing websites under a seizure warrant issued by a US District Court.

ICE officials widely acknowledged execution of the court-ordered seizure warrants but refused to provide additional details, citing an ongoing investigation. Ben Sisario, writing for the New York Times, reports “the takedown notices are similar to those that went up on nine sites in June as part of an initiative against internet counterfeiting and piracy that the agency called Operation in Our Sites.” When ICE announced that initiative, John T. Morton, the agency’s assistant secretary joined with representatives of the Motion Picture Association of America (MPAA), a trade group, to announce the start of a long-term operation against online piracy.

COICA was approved unanimously last week by the US Senate Judiciary Committee. COICA, if it becomes law, would mandate a government-run blacklist where domain name service (DNS), credit card processing, and online advertising are blocked from websites that infringe on the intellectual property rights of others.

Apparently ICE and at least one District Court believe they already have all the law they need to seize domain names on the internet. As Dan Gillmor astutely observes, “Homeland Security becomes enforcement arm of the entertainment cartel.”

Senator Ron Wyden (D-Oregon) has pledged to block COICA. Aside from being overly broad—the Electronic Frontier Foundation (EFF) refers to COICA as “an internet censorship bill”—the proposed legislation is totally ineffective. Sisario cites one of the operators of the seized domains as saying “his server was up and running at a different address.”

UK record label EMI has asked a federal judge in New York to bar the Electronic Frontier Foundation (EFF) from filing an amicus curiae brief in the record label’s lawsuit against MP3tunes. Amicus curiae—“friend of the court” briefs are often filed by interest groups in precedent-setting lawsuits. Anyone that is not party to the action can file an amicus brief and judges accept or reject them at their sole discretion.

EMI argues that the EFF’s amicus brief “contains unsupported speculation” and is “a pure advocacy piece,” too long, and a prejudice to EMI.

In September EMI sent takedown letters to MP3tunes without specifying what content it considered to be infringing, a requirement of the Digital Millennium Copyright Act (DMCA). MP3tunes gives users free storage for their music and Sideload.com, one of its subsidiary websites links users to downloads which can be stored on MP3tunes’ servers. MP3tunes filed a lawsuit (.pdf; 2.3MB) asking a federal judge to declare its business model legal.

The case promises to be a test of the DMCA’s “safe harbor” provision which protects internet service providers—including cloud storage services—from liability if infringing content uploaded by users is removed upon demand of the copyright holder. In a 2007 case, Viacom International, Inc. v. Youtube, Inc., the New York Southern District Court held that internet service providers are immune from copyright liability if they promptly remove infringing works at the copyright holder’s request, even if they know they are hosting infringing material.

But this case is about more than infringing material on websites. It’s also about what control content publishers have over their customers after the customer purchases the content. EMI in this case is asking the court to tell customers that EMI has absolute control over copyrighted content purchased by its customers.

The US entertainment cartel‘s latest wet dream, the Combating Online Infringement and Counterfeits Act (COICA), calls for a mandated government-run blacklist where domain name service (DNS), credit card processing, and online advertising are blocked from websites that infringe on the intellectual property rights of others. After unanimously passing the US Senate Judiciary Committee, this ill-conceived legislation will do nothing to stop the tech-savvy from infringing copyright but will do everything to block ordinary citizens from content their government deems inappropriate. Because even websites that publish infringing material may also publish material that’s constitutionally protected. Think WikiLeaks here, folks. If WikiLeaks is deemed to have published infringing material, access to all of WikiLeaks’ content would be denied. Or Canadian prescription drug websites that sell pharmaceuticals at lower costs. And some domains host thousands of individual websites (think WordPress.com). If just one of those sites publishes infringing material, all of the sites hosted on that domain are blacklisted and disconnected.

DemandProgress argues that the internet disconnection powers inherent in the bill could be used for just such political purposes, using the WikiLeaks scenario as an example. The activist group has a petition to stop the blacklist. A group of university professors have signed on to a letter in opposition to the legislation by David Post at Temple. “The Act, if enacted into law, would fundamentally alter US policy towards internet speech, and would set a dangerous precedent with potentially serious consequences for free expression and global internet freedom,” writes Post in his letter. Tim Berners-Lee, who invented the web itself, went so far as to call the proposed legislation a “blight” on the internet at a web conference at the Royal Society in London.

Congratulations to the members of the Senate Judiciary Committee—you’ve blessed the Chinese approach to censoring the internet. We are now Turkey. And you’re too duplicitous to recognize this for what it is: The latest attempt by the entertainment cartel to eat their cake and have it too. The story’s as old as history (God bless Plato) but here’s a modern refresher. The cartel tried to eliminate the video cassette recorder (VCR) by going to the Supreme Court arguing to keep the “Boston Strangler” out of our living rooms. And again with the early .mp3 players. Then again with the analog hole (with breathtaking unoriginal language almost identical to that used against the VCR). Yet again with the commercial skipping digital video recorder (DVR). Oh, and remember the play for a mandatory broadcast flag. And finally, the Digital Millennium Copyright Act (DMCA).