sopa – Techdirt (original) (raw)

Techdirt Podcast Episode 421: The Fracturing Internet

from the dns-at-risk dept

Way, way back during the SOPA/PIPA fight, a very important part of the resistance against the bills was coming from infrastructure operators who explained how they were technically incoherent and dangerous. One prominent group was the Internet Infrastructure Coalition, co-founded by Christian Dawson. Today, with legislative amnesia setting in and new requirements for infrastructure-level site blocking rearing their heads, the Coalition has released a new report: DNS At Risk. This week, he joins us on the podcast to talk about the report and the ongoing dangers of attacks on the internet infrastructure.

You can also download this episode directly in MP3 format.

Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts or Spotify, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Filed Under: christian dawson, dns, infrastructure, pipa, podcast, regulation, sopa

Site-Blocking Legislation Is Back. It’s Still A Terrible Idea.

from the not-this-again dept

More than a decade ago, Congress tried to pass SOPA and PIPA—two sweeping bills that would have allowed the government and copyright holders to quickly shut down entire websites based on allegations of piracy. The backlash was immediate and massive. Internet users, free speech advocates, and tech companies flooded lawmakers with protests, culminating in an “Internet Blackout” on January 18, 2012. Turns out, Americans don’t like government-run internet blacklists. The bills were ultimately shelved.

Thirteen years later, as institutional memory fades and appetite for opposition wanes, members of Congress in both parties are ready to try this again.

The Foreign Anti-Digital Piracy Act (FADPA), along with at least one other bill still in draft form, would revive this reckless strategy. These new proposals would let rights holders get federal court orders forcing ISPs and DNS providers to block entire websites based on accusations of infringing copyright. Lawmakers claim they’re targeting “pirate” sites—but what they’re really doing is building an internet kill switch.

These bills are an unequivocal and serious threat to a free and open internet. EFF and our supporters are going to fight back against them.

Site-Blocking Doesn’t Work—And Never Will

Today, many websites are hosted on cloud infrastructure or use shared IP addresses. Blocking one target can mean blocking thousands of unrelated sites. That kind of digital collateral damage has already happened in Austria, Russia​, and in the US.

Site-blocking is both dangerously blunt and trivially easy to evade. Determined evaders can create the same content on a new domain within hours. Users who want to see blocked content can fire up a VPN or change a single DNS setting to get back online.

These workarounds aren’t just popular—they’re essential tools in countries that suppress dissent. It’s shocking that Congress is on the verge of forcing Americans to rely on the same workarounds that internet users in authoritarian regimes must rely on just to reach mislabeled content. It will force Americans to rely on riskier, less trustworthy online services.

Site-Blocking Silences Speech Without a Defense

The First Amendment should not take a back seat because giant media companies want the ability to shut down websites faster. But these bills wrongly treat broad takedowns as a routine legal process. Most cases would be decided in ex parte proceedings, with no one there to defend the site being blocked. This is more than a shortcut–it skips due process entirely.

Users affected by a block often have no idea what happened. A blocked site may just look broken, like a glitch or an outage. Law-abiding publishers and users lose access, and diagnosing the problem is difficult. Site-blocking techniques are the bluntest of instruments, and they almost always punish innocent bystanders.

The copyright industries pushing these bills know that site-blocking is not a narrowly tailored fix for a piracy epidemic. The entertainment industry is booming right now, blowing past its pre-COVID projections. Site-blocking legislation is an attempt to build a new American censorship system by letting private actors get dangerous infrastructure-level control over internet access.

EFF and the Public Will Push Back

FADPA is already on the table. More bills are coming. The question is whether lawmakers remember what happened the last time they tried to mess with the foundations of the open web.

If they don’t, they’re going to find out the hard way. Again.

Site-blocking laws are dangerous, unnecessary, and ineffective. Lawmakers need to hear—loud and clear—that Americans don’t support government-mandated internet censorship. Not for copyright enforcement. Not for anything.

Reposted from the EFF’s Deeplinks blog.

Filed Under: copyright, fadpa, pipa, piracy, site blocking, sopa

The Motion Picture Association Doesn’t Get To Decide Who The First Amendment Protects

from the that's-not-how-any-of-this-works dept

Twelve years ago, internet users spoke up with one voice to reject a law that would build censorship into the internet at a fundamental level. This week, the Motion Picture Association (MPA), a group that represents six giant movie and TV studios, announced that it hoped we’d all forgotten how dangerous this idea was. The MPA is wrong. We remember, and the internet remembers.

What the MPA wants is the power to block entire websites, everywhere in the U.S., using the same tools as repressive regimes like China and Russia. To it, instances of possible copyright infringement should be played like a trump card to shut off our access to entire websites, regardless of the other legal speech hosted there. It is not simply calling for the ability to take down instances of infringement—a power they already have, without even having to ask a judge—but for the keys to the internet. Building new architectures of censorship would hurt everyone, and doesn’t help artists.

The bills known as SOPA/PIPA would have created a new, rapid path for copyright holders like the major studios to use court orders against sites they accuse of infringing copyright. Internet service providers (ISPs) receiving one of those orders would have to block all of their customers from accessing the identified websites. The orders would also apply to domain name registries and registrars, and potentially other companies and organizations that make up the internet’s basic infrastructure. To comply, all of those would have to build new infrastructure dedicated to site-blocking, inviting over-blocking and all kinds of abuse that would censor lawful and important speech.

In other words, the right to choose what websites you visit would be taken away from you and given to giant media companies and ISPs. And the very shape of the internet would have to be changed to allow it.

In 2012, it seemed like SOPA/PIPA, backed by major corporations used to getting what they want from Congress, was on the fast track to becoming law. But a grassroots movement of diverse Internet communities came together to fight it. Digital rights groups like EFF, Public Knowledge, and many more joined with editor communities from sites like Reddit and Wikipedia to speak up. Newly formed grassroots groups like Demand Progress and Fight for the Future added their voices to those calling out the dangers of this new form of censorship. In the final days of the campaign, giant tech companies like Google and Facebook (now Meta) joined in opposition as well.

What resulted was one of the biggest protests ever seen against a piece of legislation. Congress was flooded with calls and emails from ordinary people concerned about this steamroller of censorship. Members of Congress raced one another to withdraw their support for the bills. The bills died, and so did site blocking legislation in the US. It was, all told, a success story for the public interest.

Even the MPA, one of the biggest forces behind SOPA/PIPA, claimed to have moved on. But we never believed it, and they proved us right time and time again. The MPA backed site-blocking laws in other countries. Rightsholders continued to ask US courts for site-blocking orders, often winning them without a new law. Even the lobbying of Congress for a new law never really went away. It’s just that today, with MPA president Charles Rivkin openly calling on Congress “to enact judicial site-blocking legislation here in the United States,” the MPA is taking its mask off.

Things have changed since 2012. Tech platforms that were once seen as innovators have become behemoths, part of the establishment rather than underdogs. The Silicon Valley-based video streamer Netflix illustrated this when it joined MPA in 2019. And the entertainment companies have also tried to pivot into being tech companies. Somehow, they are adopting each other’s worst aspects.

But it’s important not to let those changes hide the fact that those hurt by this proposal are not Big Tech but regular internet users. Internet platforms big and small are still where ordinary users and creators find their voice, connect with audiences, and participate in politics and culture, mostly in legal—and legally protected—ways. Filmmakers who can’t get a distribution deal from a giant movie house still reach audiences on YouTube. Culture critics still reach audiences through zines and newsletters. The typical users of these platforms don’t have the giant megaphones of major studios, record labels, or publishers. Site-blocking legislation, whether called SOPA/PIPA, “no fault injunctions,” or by any other name, still threatens the free expression of all of these citizens and creators.

No matter what the MPA wants to claim, this does not help artists. Artists want their work seen, not locked away for a tax write-off. They wanted a fair deal, not nearly five months of strikes. They want studios to make more small and midsize films and to take a chance on new voices. They have been incredibly clear about what they want, and this is not it.

Even if Rivkin’s claim of an “unflinching commitment to the First Amendment” was credible from a group that seems to think it has a monopoly on free expression—and which just tried to consign the future of its own artists to the gig economy—a site-blocking law would not be used only by Hollywood studios. Anyone with a copyright and the means to hire a lawyer could wield the hammer of site-blocking. And here’s the thing: we already know that copyright claims are used as tools of censorship.

The notice-and-takedown system created by the Digital Millennium Copyright Act, for example, is abused time and again by people who claim to be enforcing their copyrights, and also by folks who simply want to make speech they don’t like disappear from the Internet. Even without a site-blocking law, major record labels and US Immigration and Customs Enforcement shut down a popular hip hop music blog and kept it off the internet for over a year without ever showing that it infringed copyright. And unscrupulous characters use accusations of infringement to extort money from website owners, or even force them into carrying spam links.

This censorious abuse, whether intentional or accidental, is far more damaging when it targets the internet’s infrastructure. Blocking entire websites or groups of websites is imprecise, inevitably bringing down lawful speech along with whatever was targeted. For example, suits by Microsoft intended to shut down malicious botnets caused thousands of legitimate users to lose access to the domain names they depended on. There is, in short, no effective safeguard on a new censorship power that would be the internet’s version of police seizing printing presses.

Even if this didn’t endanger free expression on its own, once new tools exist, they can be used for more than copyright. Just as malfunctioning copyright filters were adapted into the malfunctioning filters used for “adult content” on tumblr, so can means of site blocking. The major companies of a single industry should not get to dictate the future of free speech online.

Why the MPA is announcing this now is anyone’s guess. They might think no one cares anymore. They’re wrong. Internet users rejected site blocking in 2012 and they reject it today.

Republished from the EFF Deep Links blog.

Filed Under: 1st amendment, copyright, pipa, site blocking, sopa
Companies: mpa, mpaa

Hollywood Believes The Time Is Ripe To Bring Back SOPA

from the not-this-bullshit-again dept

It’s been twelve years since the big SOPA/PIPA fight. I’ve been talking with a few folks lately about how it feels like many people have either forgotten that story or weren’t paying attention when it happened. Two years ago, we did a 10-year retrospective on the fight, and it feels like some people need a refresher. Most notably, Charles Rivkin, the head of the MPA (formerly the MPAA), certainly appears to need a refresher because he just announced it’s time to bring back SOPA.

For the young ones in the audience, SOPA (and its Senate companion, PIPA) were bills pushed strongly by the film (MPA) and recording (RIAA) industries. They were pushing for “site blocking” for websites that the industries accused of being “dedicated to piracy.” The law was a slam dunk. It had a huge number of co-sponsors, and the MPA/RIAA combo had convinced Congress to pass ever more expansive copyright laws basically every two to three years for the past 25 years. SOPA was set to become law.

Until it wasn’t. Because the public spoke up loudly. I (coincidentally) was at the Capitol on the day of the big Internet Blackout in protest of SOPA/PIPA, and I heard the phones ringing off the hook. I was running up and down the halls of the office buildings, having Reps. tell me how they were removing their names from the co-sponsor list. The public spoke up and it worked.

But it’s important to remember why it worked: because the law was a horrific attack on free speech and the open web. And for no good reason.

We spent much time explaining why this would be a clear violation of the First Amendment. Under the First Amendment, you cannot shut down an entire publishing house just because it sometimes has published works that contain, say, defamation. You cannot ban access to a photocopying machine because some users use it to infringe. SOPA was basically built-in prior restraint.

You can only target the actually violative content and not declare entire sites be blocked. That goes way beyond what the First Amendment allows.

On top of that, it’s dangerous. First, as was made clear at the time, site blocking of that nature would fuck with underlying technological protocols that are designed to return sites on request. In particular, it would break DNSSEC, which remains an important bit of security online.

There is also the very real risk of false positives. We have plenty of examples of this. During the run-up to SOPA, Universal Music actually declared hip-hop star 50 Cent’s personal website to be dedicated to infringing content. Also, the risk of collateral damage is very real. In the past, we’ve had stories of orders to block a single site, not realizing it was on a shared server, that ended up with tons of sites blocked as collateral damage.

All that is to say: site blocking is bad, doesn’t work, isn’t needed, would cause real damage, and much, much more.

And so of course the MPA and Rivkin are trying to bring it back. In a speech earlier this week, Rivkin laid out the “state of the industry.” He pulled out all the old debunked hits from a decade ago about how piracy was killing Hollywood and blah blah blah. The problem is, it’s just not true. Earlier this year we released our latest Sky is Rising report, which again showed that Hollywood is thriving, and that piracy was never a particularly serious problem.

Indeed, the only reason there’s recently been a small increase in infringing use is because the big streaming companies (who are all members of the MPA) have started implementing a bunch of bullshit policies designed to annoy users and to squeeze them for more money, while giving less in return. The cause of piracy is the MPA members themselves.

But, alas, Rivkin insists that site blocking is the only answer to his own members’ failures to treat customers right:

So today, here with you at CinemaCon, I’m announcing the next major phase of this effort: the MPA is going to work with Members of Congress to enact judicial site-blocking legislation here in the United States.

For anybody unfamiliar with the term, site-blocking is a targeted, legal tactic to disrupt the connection between digital pirates and their intended audience.

It allows all types of creative industries – film and television, music and book publishers, sports leagues and broadcasters – to request, in court, that internet service providers block access to websites dedicated to sharing illegal, stolen content.

Let’s be clear: this approach focuses only on sites featuring stolen materials. There are no gray areas here.

Site-blocking does not impact legitimate businesses or ordinary internet users. To the contrary: it protects them, too.

And it does so within the bounds of due process, requiring detailed evidence establishing a target’s illegal activities and allowing alleged perpetrators to appear in a court of law.

Almost everything Rivkin says here is bullshit. Hollywood is thriving these days. They had a blip due to COVID, but there is no indication, at all, that “piracy” has ever been a problem, let alone now. Rivkin tosses out bullshit numbers claiming massive job and revenue losses from piracy, and those numbers come from laughably bad studies that often assume every infringing copy is a lost sale. Or they lump in claims of “trademark infringement” to argue that every counterfeit product is the same as someone downloading a movie they would never have paid for in the first place.

But, more importantly, site blocking is 100% prior restraint and unconstitutional in the US. There is no serious due process in any site blocking regime, and every attempt has resulted in all sorts of bogus blocks and takedowns, many of which we’ve detailed over the years.

Rivkin’s claims that there “are no gray areas” and that it “focuses only on sites featuring stolen materials” would sound a lot better if we didn’t have a long list of bogus seizures of sites based on lies told by the RIAA and MPA. Remember Dajaz1? That site was seized by the government because the RIAA lied and claimed it featured infringing content. It did not. It was a music blog that the industry itself would often send material to in an effort to hype up artists.

Or how about OnSmash? It was another blog that the recording industry regularly sent tracks to as a promotional gambit, only to then claim it was a pirate site. It was seized and the government ignored requests to return it for FIVE YEARS, before finally handing it back to the original owner with no charges filed and no apology.

There are many more examples like this of sites being seized by the government based on outright lies by the industry. There is no due process. There is no fairness. It absolutely destroyed “legitimate businesses and ordinary internet users.”

Rivkin is lying. He’s hoping that people are too distracted with things like generative AI and fights over Section 230 to realize that they’re bringing back SOPA and looking to destroy the open internet once again.

Do not let this move forward. If Rivkin is mentioning it, it means he has the MPA’s usual crew of bought-and-paid-for Congressional Reps and Senators ready to spring into action.

Congress is going to need to be reminded why the internet stood up and said “NO!” last time SOPA/PIPA came around. They need to be reminded why they’ve stayed away from copyright law for the most part all these years, realizing it had become a third rail issue. The MPA bringing SOPA back suggests they think internet users are distracted and have moved on.

We’re going to need to show Rivkin that he’s wrong.

Filed Under: 1st amendment, charles rivkin, copyright, pipa, prior restraint, site blocking, sopa
Companies: mpa, mpaa

Techdirt Podcast Episode 327: Walled Culture Interview

from the we're-back dept

We’ve got a cross-post episode for you this week! Recently, Mike appeared on the Walled Culture podcast to discuss a wide range of topics including reflections on the SOPA/PIPA fight, ways to support creators, and the world of NFTs. You can listen to the entire interview on this week’s episode of the Techdirt Podcast.

Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts or Spotify, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Filed Under: interview, nfts, pipa, podcast, sopa

Who Needs SOPA: Judge Orders Every US ISP To Block Entire Websites Accused Of Enabling Piracy

from the that's-not-how-any-of-this-works dept

Almost exactly a decade ago, a few months after the US Congress rejected the site blocking setup of the SOPA copyright bill, which would enable copyright holders to force ISPs to block access entirely to websites deemed as being dedicated to “piracy,” we wrote a post about how it wasn’t even clear SOPA was needed when courts were willing to issue such blocking orders already. That was in a case around counterfeiting, where Louis Vuitton sought, and obtained, an order from a judge that demanded that domain registrars and ICANN effectively wipe certain website domains off the internet entirely.

Fast forward almost exactly a decade and TorrentFreak points us to a somewhat similar series of orders that demand that every ISP in the US block access entirely to three websites accused of infringement by a series of movie, TV, sports, and news content providers in Israel. The three orders are all embedded below, though they’re all basically the same — but they order non-party ISPs to block access to three domains that are accused of showing infringing streams: israel-tv.com, israel.tv, and sdarot.tv.

For all three of the websites, no defendants showed up in court (not too surprising, given that the cases were filed in the US). Without a defendant showing up, the court ruled for the plaintiffs in a default judgment — which is pretty typical. However, what is atypical, is that the judge then basically set the 1st Amendment on fire, and basically ordered a ton of non-parties to do things to stop enabling any access to these websites. It first issues a permanent injunction for anyone operating or working with those websites, but then issues an order for EVERY single ISP in the US to block access to these websites.

IT IS FURTHER ORDERED that all ISPs (including without limitation those set forth in Exhibit B hereto) and any other ISPs providing services in the United States shall block access to the Website at any domain address known today (including but not limited to those set forth in Exhibit A hereto) or to be used in the future by the Defendants (“Newly-Detected Websites”) by any technological means available on the ISPs’ systems. The domain addresses and any NewlyDetected Websites shall be channeled in such a way that users will be unable to connect and/or use the Website, and will be diverted by the ISPs’ DNS servers to a landing page operated and controlled by Plaintiffs (the “Landing Page”) which can be reached as follows:

Domain – zira-usa-11026.org IP Address: 206.41.119.50 (Dedicated)

The Landing Page will include substantially the following information:

On April 26, 2022, in the case of United King Distributors, et al. v. Does 1-10, d/b/a Sdarot.tv (S.D.N.Y., Case No. 1:21-cv-11026 (KPF) (RWL)), the U.S. District Court for the Southern District of New York issued an Order to block all access to this website/ service due to copyright infringement

It’s unclear who created this particular landing page, but it does not exist, and at least it doesn’t include the silly badges with eagles on it.

The blocking order shows a very long list of ISPs, covering nine pages. For unclear reasons, the list shows not just the names of the ISPs, but also the estimated population covered, the number of states they cover, and their max speeds. As far as I can tell, the list appears to come from BroadbandNow’s “Internet Providers in the United States of America” list. This is the first page that comes up if you Google “list of US ISPs” and it also displays the exact same data sets in the exact same order. The list doesn’t match exactly, though, so it appears to be a subset of the larger list — though the court order says that it should be considered to apply to any US ISP.

And Judge Katherine Polk Failla doesn’t stop there. After ordering every ISP to block these websites, she also orders all third party service providers to cease doing business with these three websites. This includes an incredibly long list of possible service providers (notably a list that is even more in-depth than would have been required under SOPA — which, again, Congress rejected):

IT IS FURTHER ORDERED, that third parties providing services used in connection with Defendants’ operations — including, without limitation, ISPs, web hosting providers, CDN service providers, DNS service providers, VPN service providers, domain name purchasing service, domain names privacy service, back-end service providers, affiliate program providers, web designers, shippers, search-based online advertising services (such as through-paid inclusion, paid search results, sponsored search results, sponsored links, and Internet keyword advertising), any banks, savings and loan associations, merchant account providers, payment processors and providers, credit card associations, or other financial institutions, including without limitation, PayPal, and any other service provider which has provided services or in the future provides services to Defendants and/or the infringing Website (including without limitation those set forth in the list annexed and made Exhibit C annexed hereto) (each, a “Third Party Service Provider”) — having knowledge of this Order by service, actual notice or otherwise be and are hereby permanently enjoined from providing services to the Website (through any of the domain names set forth in Exhibit A hereto or at any Newly-Detected Websites) or to any Defendant in conjunction with any of the acts set forth in subparagraphs (A)(1) to (A)(6) above;

And, as if that was not enough, she also orders domain registrars effectively kill those domains as well and hand them over to the plaintiffs:

  1. That all domain names associated with the infringing Website, including without limitation those set forth in Exhibit A hereto, as well as any Newly-Detected Websites, be transferred to Plaintiffs’ ownership and control; and
  2. That in accordance with this Court’s inherent equitable powers and its power to coerce compliance with its lawful orders, and due to Defendants’ on-going operation of their counterfeiting activities, in the event Plaintiffs identifies any Newly-Detected Website registered or operated by any Defendant and used in conjunction with the streaming any of Plaintiffs’ Works, including such Websites utilizing domain names containing any of Plaintiffs’ service mark or marks confusingly similar thereto, Plaintiffs shall have the ongoing authority to serve this Order on the domain name registries and/or the individual registrars holding and/or listing one or more of such the domain names associated with the Newly-Detected Websites; and
  3. That the domain name registries and/or the individual registrars holding and/or listing one or more of the domain names associated with the Newly-Detected Websites, within seven (7) days of service of a copy of this Order, shall temporarily disable any domain names associated with the Newly-Detected Websites, make them inactive, and channel them in such a way that users will be unable to connect and/or use the Website, and will be diverted to the Landing Page (as defined in Paragraph B, above); and
  4. That after thirty (30) business days following the service of this Order, the registries and/or the individual registrars shall provide Plaintiffs with all contact information for the Newly-Detected Websites; shall transfer any domain names associated with the Newly-Detected Websites to the ownership and control of Plaintiffs, through the registrar of Plaintiffs’ choosing, unless the Defendant has filed with the Court and served upon Plaintiffs’ counsel a request that such Newly-Detected Websites be exempted from this Order or unless Plaintiffs requests that such domain names associated with the NewlyDetected Websites be released rather than transferred;

Again, this is way, way beyond what even SOPA would have allowed. But Congress didn’t do it — and for good reason. This ruling has some really significant 1st Amendment issues. Ordering the complete takedown of a website like this is the equivalent of shutting down a magazine — ordering that the landlord evict the publisher, that the printing presses be destroyed, that the postal service refuse to send copies of the magazine, that the local waste management company refuse to pick up the garbage, etc. etc. An order like that would obviously have tremendous 1st Amendment problems as an attack on speech, even if you recognize that some of the content was infringing.

Of course, given that the websites chose not to show up in US court, it seems unlikely that they will challenge the order. It is possible that some ISPs might push back on it, not because they want to support piracy, but because of the extraordinarily problematic general precedent of allowing a judge to order such an extreme internet kill order. Allowing these kinds of orders to survive creates tremendous instability for the internet, and hopefully some ISPs will push back.

Filed Under: blocking orders, cdn, copyright, dns, israel, new york, registrars, site blocking, sopa, website blocking
Companies: dbs satellite services, hot communication, screen il, united king film distribution

Techdirt Podcast Episode 309: Remembering The SOPA Fight, With Rep. Zoe Lofgren

from the as-it-happened dept

As many of you know, last week we hosted an online event for the latest Techdirt Greenhouse edition, all about looking back on the lessons learned from the 2012 protests against SOPA and PIPA. Our special guest was Rep. Zoe Lofgren, one of the strongest voices in congress speaking out against the disastrous bills, who provided all kinds of excellent insight into what happened then and what’s happening now. In case you missed it, for this week’s episode of the podcast (yes, we’re finally back with new episodes!) we’ve got the full conversation and Q&A from the event.

Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Filed Under: copyright, pipa, podcast, sopa, zoe lofgren

Winding Down Our Latest Greenhouse Panel: The Lessons Learned From SOPA/PIPA

from the past-is-prologue dept

Wed, Jan 26th 2022 01:43pm - Karl Bode

Ten years ago a coalition of strange bedfellows came together to thwart one of the most problematic pieces of legislation in tech policy history. In the process they made history, rekindled waning optimism about the health of democratic process, forged longstanding new alliances across activism, politics, academia, and industry, and redefined what’s possible in the tech policy arena and the halls of Congress. Not bad for a day’s work.

Their motivation was SOPA/PIPA, a ham-fisted attempt to impose a draconian expansion to the nation’s copyright laws that experts warned would restrict speech, stifle innovation, and curtail the growth of numerous online communities. The bill crafted an extrajudicial process with contours dictated not by experts, the public, or democratic process, but by entertainment industry lawyers. Thwarting its passage required a unique fusion of DC veterans well-versed in the machinery of Congress, academics with a vast understanding of the issues at hand, and younger activists employing fresh tactics in the fight for an open internet.

The result was not only a high watermark in online activism, the lessons learned during the experience will inform coalition building and activism for decades to come. Many of the experts, industry leaders, and politicians who experienced the battle first hand were kind enough to share their thoughts on the experience. Their contributions are outlined here, in case you missed any:

Again, we’d like to extend our immense appreciation to contributors of our latest roundtable, live panel participants, and Techdirt readers, and we hope these conversations have provided value to internet policymakers and everyday internet users alike.

Filed Under: copyright, greenhouse, sopa

From The Revolt Against SOPA To The EU's Upload Filters

Register now for TODAY’s online event featuring Rep. Zoe Lofgren »

From the European perspective, the revolt against SOPA that happened 10 years ago is a somewhat distant memory. During the past 10 years we have seen two more inflection points in the fight against excessive copyright enforcement: the successful fight against ACTA in 2012 that was directly inspired by the success against SOPA earlier that year and — much more recently — the fight against upload filters that unfolded between 2016 and 2019 in the context of the EU copyright reform.

In this post I will trace the lineage of the struggle against excessive copyright enforcement from the revolt against SOPA all the way to the outcome of the EU copyright reform that was enacted in 2019.

From SOPA to ACTA

There can be no doubt that SOPA — had it been enacted — would have had massive consequences for internet users around the globe. While formally a proposal for legislation in the US, it would have changed the operating rules for platforms that are part of the online fabric for most of the global population. Much like the rules of the DCMA and Section 230 of the Communications Decency Act are underpinning copyright enforcement and content moderation around the globe, SOPA would have been applied globally.

This is partially due to the fact that the platforms targeted by the proposal are primarily based in the US, but also because platforms that operate on a global scale have incentives to comply with rules that apply in sufficiently large markets, which means that regulatory regimes are often exported well beyond the jurisdictions where they have been originally enacted.

Seen in this light, the successful revolt against SOPA was as much a win for internet users outside of the US as it was for users in the US. But for internet users and activists in Europe, it also provided the inspiration for their fight against ACTA — the Anti Counterfeiting Trade Agreement that was negotiated from 2007 through 2010 by the European Union, the US, Switzerland, Canada, Australia, New Zealand, Mexico, Singapore, Morocco, Japan, and South Korea.

In parallel to the protests against SOPA, the EU and the individual EU member states geared up to sign the final ACTA agreement. The protests against ACTA in Europe erupted when — in an act of incredibly poor timing — the Polish government announced on the 18th of January 2012 that it would sign ACTA.

This moment unleashed a series of protests that took place both online and offline — in the form of sizable demonstrations in a number of EU member states. The protests that continued throughout the spring of 2012 ultimately lead to the rejection of ACTA by the European Parliament on the 4th of July 2012, effectively killing ACTA less than half a year after SOPA had been defeated.

While unfolding in different political venues, the mobilizations against SOPA/PIPA and ACTA share an important characteristic. Both were directed against measures that were extremely one-sided: Both SOPA and ACTA bundled right holder demands for stronger — or rather excessive — copyright enforcement into legislative measures that did not contain any other elements.

In both cases a central element was the desire to enlist Internet Service Providers as copyright enforcers. This meant that the mobilization against these measures could rally around a very simple political demand — to stop these measures from being adopted. In both cases the widespread opposition from internet users and platforms (both commercial and non-profit) managed to build up enough political power to achieve this well defined goal.

From ACTA to Uploadfilters

With ACTA and SOPA defeated, it took a while for rightholders to launch another attempt to gain additional enforcement powers. In the period between 2012 and 2015, rightholders in the EU started building a new case against online platforms and their users. Instead of targeting internet service providers which had been on the focus of the measures contained in the SOPA and ACTA proposals, this new case focussed on “user generated content” platforms, of which YouTube was the primary example.

Driven largely by the music industry — but supported by organised rightholders from across the spectrum — European rightholders developed the “value gap” narrative that claimed that UGC platforms where generating value from the unauthorised upload of copyrighted content by their users that they failed to pass on to the legitimate recipients — the rightholders. To address this supposed “value gap” rightholders demanded legislative measures that would strip UGC platforms of the liability privileges that shield them from legal responsibility for content uploaded by their users.

These liability limitations established by the 2001 E-Commerce directive that ensure that platforms are not liable for content uploaded by their users as long as they follow a notice and takedown procedure became the main target of the rightholder lobby which managed to convince the EU Commission to include a proposal to make large UGC platforms directly liable for any content uploaded by their users in its proposal for a Directive on Copyright in the Digital Single Market that was unveiled in the fall of 2016.

Article 13 of the Commission proposal contained language that would have required large UGC platforms to “take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers.”

In other words Article 13 — as proposed — would have required platforms to either conclude licensing agreements with rightholders for all content uploaded by their users — an impossible demand — or to block uploads of works identified by rightholders.

Digital and civil rights advocates quickly identified the provisions in Article 13 as the most problematic aspect of the Commission’s proposal for the CDSM directive and started campaigning against what — in their eyes – amounted to the introduction of mandatory upload filters in the EU.

The campaign to stop upload filters and to delete Article 13 that took shape over the following two and a half years recalled many aspects of the previous fights against SOPA and ACTA. As in the revolt against SOPA, the coalition fighting to delete Article 13 included civil society advocacy groups, public interest organisations and a wide range of online platforms.

Similar to the mobilization against ACTA, the coalition managed to mobilize large groups of supporters both online — more than 5 million people signed a petition against Article 13 — and offline — in early 2019 more than 200.000 people across Europe took to the streets. The tools and tactics used by the opponents of Article 13 included many of the tools first deployed in the revolt against SOPA — ranging from website blackouts to mass email and social media campaigns directly targeting the responsible law makers.

But in the end the campaign to delete Article 13 failed to achieve its objective. During the final legislative showdown — the vote in the EU parliament in April 2019 — a proposal to have a separate vote on Article 13 of the directive was narrowly rejected with a margin of just five votes. As a result it never came to a yes-or-no vote on Article 13 and the European Parliament adopted the entire DSM directive including a heavily modified version of Article 13 with a clear majority.

Learning from Article 13

Even though it ultimately failed at achieving its objective, the campaign against Article 13 clearly showed excessive copyright enforcement measures have not lost their mobilization potential among internet users. So what was different here?

The biggest difference between the campaigns against SOPA and ACTA on the one side and Article 13 on the other side is that the latter was just one measure embedded in a much bigger copyright reform package — the proposed Copyright in the Digital Single Market directive. Where SOPA and ACTA immediately stood out in their one-sidedness and were thus much easier to discredit, the DSM directive was a multi-dimensional legislative package that contained a wide variety of measures that appealed to different sets of stakeholders.

In addition to Articles 13 and 11 — a new neighboring right for press publishers — which reflected demands by organized rightholders, the directive also contained proposals for new copyright exceptions benefitting libraries, educational and research institutions and a number of measures strengthening the position of individual creators vis-a-vis publishers and other intermediaries. And while Article 11 and 13 were both highly controversial, these other measures enjoyed support from lawmakers across broad parts of the political spectrum.

As a result of this divide-and-conquer approach, support for the project of adopting the directive came from a diverse set of stakeholders who pushed to see “their” issues adopted. Meanwhile lawmakers (and the EU Member States) were bitterly divided between different camps supporting different elements of the directive while rejecting others. These divisions manifested themselves not along party lines but split all major political parties down the middle.

In this relatively unstable political climate there never was as clear majority for abandoning the overall project of adopting the directive and so the vast EU legislative apparatus did what it has been designed to do: step by step it pursued its objective towards producing compromise between the various political groups which ultimately resulted in the adoption of the directive at the very end of the legislative term.

User rights as a by-product of the fight against upload filters?

While the final vote on the directive was very much perceived as an all or nothing decision — the proponents of Article 13 united under the “yes to copyright” banner while the opponents proclaimed to “save the internet” — a retrospective analysis of the adopted measures paints a very different picture.

During the course of the legislative wrangling, Article 13 underwent significant changes to accommodate concerns expressed by its opponents. The Final version of Article 13 (now Article 17 after a renumbering of the provisions of the directive) is substantially different from the Commission’s original proposal. And while it shares its two main elements — the removal of the general liability privilege for UGC platforms and a de-facto requirement to deploy upload filters — it has accumulated a number of substantial procedural and substantive user rights safeguards that have not been present in the original version.

Even more so Article 17 has become a vehicle for harmonizing key user rights by making the previously optional exceptions for quotation, criticism, review, parody, pastiche and caricature mandatory in all EU Member States. In addition, it now imposes obligations on Member States to ensure that these rights can effectively be exercised by users of UGC platforms. All of these amount to tangible improvements for internet users in the EU (for platforms this picture is more complicated).

So while the effort to prevent the mandatory imposition of upload filters has clearly failed, the collision of massive SOPA style mobilisations with the EU’s compromise focussed legislative process may have created a rather unexpected outcome: the codification of important user rights and a framework for regulating the use of automated content moderation technologies that had were already in widespread use but so far deployed purely at the discretion of the online platforms.

As such, what had originally been perceived as a bitter loss breaking with the tradition of the earlier successes of the mobilisations against SOPA and ACTA, seems more and more like a win for internet users in an admittedly ugly disguise.

Paul Keller is Director of Policy at Open Future and President of the COMMUNIA association for the Public Domain where he coordinated the advocacy efforts related to the new EU copyright directive.

This Techdirt Greenhouse special edition is all about the 10 year anniversary of the fight that stopped SOPA. On January 26th at 1pm PT, we’ll be hosting a live discussion with Rep. Zoe Lofgren and some open roundtable discussions about the legacy of that fight. Please register to attend.

Filed Under: acta, article 13, article 17, copyright, copyright directive, eu, sopa, upload filters

Come Join Our Fireside Chat With Rep. Zoe Lofgren To Discuss Internet Regulations: From SOPA To Now… And Looking Forward

from the don't-miss-it dept

As you’ve probably seen, for the last couple of weeks we’ve been running our Techdirt Greenhouse series of posts looking back on the fight against SOPA from those who were there at the time, including one this morning from from Rep. Zoe Lofgren, who was a key player in Congress stopping SOPA. Tomorrow at 1pm PT / 4pm ET, we’ll be having Rep. Lofgren join us for a “fireside chat” looking back at what happened with SOPA a decade ago, but more importantly looking at what’s happening today with internet regulations and where things are likely to go. If you want to attend live, please register to sign up. Like many of our recent events, we’re using the Remo platform, which has the feeling of an actual in-person event, even while it’s virtual. You’ll be able to talk to other people at your “table” as well as move around to other tables to talk to other attendees as well. During the talk with Lofgren, you’ll be able to submit your own questions as well. So please join us tomorrow…

Filed Under: competition, copyright, internet policy, privacy, section 230, sopa, zoe lofgren