ONTD Political

Today is American Censorship Day

12:54 pm - 11/16/2011

House takes Senate's bad Internet censorship bill, tries making it worse
By Nate Anderson

Imagine a world in which any intellectual property holder can, without ever appearing before a judge or setting foot in a courtroom, shut down any website's online advertising programs and block access to credit card payments. The credit card processors and the advertising networks would be required to take quick action against the named website; only the filing of a “counter notification” by the website could get service restored.

It's the world envisioned by Rep. Lamar Smith (R-TX) in today's introduction of the Stop Online Piracy Act in the US House of Representatives. This isn't some off-the-wall piece of legislation with no chance of passing, either; it's the House equivalent to the Senate's PROTECT IP Act, which would officially bring Internet censorship to the US as a matter of law.

Calling its plan a “market-based system to protect US customers and prevent US funding of sites dedicated to theft of US property,” the new bill gives broad powers to private actors. Any holder of intellectual property rights could simply send a letter to ad network operators like Google and to payment processors like MasterCard, Visa, and PayPal, demanding these companies cut off access to any site the IP holder names as an infringer.

The scheme is much like the Digital Millennium Copyright Act's (DMCA) "takedown notices," in which a copyright holder can demand some piece of content be removed from sites like YouTube with a letter. The content will be removed unless the person who posted the content objects; at that point, the copyright holder can decide if it wants to take the person to court over the issue.

Here, though, the stakes are higher. Rather than requesting the takedown of certain hosted material, intellectual property owners can go directly for the jugular: marketing and revenue for the entire site. So long as the intellectual property holders include some “specific facts” supporting their infringement claim, ad networks and payment processors will have five days to cut off contact with the website in question.

The scheme is largely targeted at foreign websites which do not recognize US law, and which therefore will often refuse to comply with takedown requests. But the potential for abuse—even inadvertent abuse—here is astonishing, given the terrifically outsized stick with which content owners can now beat on suspected infringers.


One thing private actors can't do under the new bill is actually block a site from the Internet, though it hardly matters, because the government has agreed to do it for them. The bill gives government lawyers the power to go to court and obtain an injunction against any foreign website based on a generally single-sided presentation to a judge. Once that happens, Internet providers have 5 days to “prevent access by its subscribers located within the United States to the foreign infringing site.”

The government can also go after anyone who builds a tool designed for the "circumvention or bypassing" of the Internet block. Such tools already exist as a result of the US government's ongoing campaign to seize Internet domain names it believes host infringing content; they can redirect visitors who enter the site's address to its new location. The government has already asked Web browser makers like Mozilla to remove access to these sorts of tools. Mozilla refused, so the new bill just tries to ban such tools completely. (Pointing your computer's browser to a foreign DNS server in order to view a less-censored Internet still appears to be legal.)

Search engines, too, are affected, with the duty to prevent the site in question “from being served as a direct hypertext link.” Payment processors and ad networks would also have to cut off the site.

Finally, and for good measure, Internet service providers and payment processors get the green light to simply block access to sites on their own volition—no content owner notification even needed. So long as they believe the site is “dedicated to the theft of US property,” Internet providers and payment processors can't be sued.

"Industry norms"

The House bill is shockingly sympathetic to a narrow subsection of business interests. For instance, buried deep in the back of the >70-page document is a requirement that the US Intellectual Property Enforcement Coordinator prepare a study for Congress. That study should analyze “notorious foreign infringers” and attempt to quantify the “significant harm inflicted by notorious foreign infringers.” (Talk about assuming your conclusions before you start.)

The report, which is specifically charged to give weight to the views of content owners, requests a set of specific policy recommendations that might “encourage foreign businesses to adopt industry norms to promote the protection of intellectual property globally.” Should the bill pass, the US government would be explicitly charged with promoting private “industry norms”—not actual laws or treaties—around the world.

In the request for the report, we can also see the IP maximalist lobby preparing for its next move: shutting off access to US capital markets and preventing companies from "offering stock for sale to the public" in the US.

Call it what it is

Not all censorship is bad—but we need to have an honest discussion about when and how to deploy it, rather than wrapping an unprecedented set of censorship tools in meaningless terms like "rogue site," or by calling a key section of the new bill the "E-PARASITE Act."

You don't have to support piracy—and we don't—to see the many problems with this new approach. Just today, the RIAA submitted to the US government a list of "notorious markets." As part of that list, the RIAA included "cyberlockers" like MegaUpload, which are "notorious services" that "thumb their noses at international laws, all while pocketing significant advertising revenues from trafficking in free, unlicensed copyrighted materials."

It's not hard to imagine how long it would take before such sites--which certainly do host plenty of user-uploaded infringing content--are targeted under the new law. Yet they have a host of legal uses, and cyberlockers like RapidShare have been declared legal by both US and European courts.

Not surprisingly, the new bill is getting pushback from groups like NetCoalition, which counts Google, Yahoo, and small ISPs among its members. "As leading brands of the Internet, we strongly oppose offshore 'rogue' websites and share policymakers' goal of combating online infringement of copyrights and trademarks," said executive director Markham Erickson in a statement.

"However, we do not believe that the solution lies in regulating the Internet and comprising its stability and security. We do not believe that it is worth overturning a decade of settled law that has formed the legal foundation for all social media. And finally, we do not believe that it is worth restricting free speech or providing comfort to totalitarian regimes that seek to control and restrict the Internet freedoms of their own citizens."

Dozens of law professors have also claimed the original PROTECT IP Act, which contains most of the same ideas, is unconstitutional. But the drumbeat for some sort of censorship is growing louder.

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lickety_split OP16th-Nov-2011 06:03 pm (UTC)
Can you add a cut, please?
lickety_split Re: OP16th-Nov-2011 06:11 pm (UTC)
Also, Tumblr freaked me the fuck out.
anolinde 16th-Nov-2011 06:09 pm (UTC)
Take MegaUpload away from me and die.
hammersxstrings 16th-Nov-2011 07:55 pm (UTC)
this x1000
myrrhmade 16th-Nov-2011 06:11 pm (UTC)
Ugh, I hope this fails hard.
mollywobbles867 16th-Nov-2011 06:12 pm (UTC)
Signed the petition and sent the form letter to a representative.
ennifer_jay 16th-Nov-2011 06:15 pm (UTC)
arisma 16th-Nov-2011 06:19 pm (UTC)
Legitimately frightened, ngl. When do we hear?
lilenth 16th-Nov-2011 06:30 pm (UTC)

As much as I disagree with this "The scheme is largely targeted at foreign websites which do not recognize US law, and which therefore will often refuse to comply with takedown requests." holy lack of research batman. DMCA isn't US law, it's a international law of which most countries are a signatory.

How about instead of bowing to the companies who want to try and stuff a genie back in the bottle, we instead demand that they fucking sort out their screwed up business plans and stop charging out the ass for things just because they can.
intrikate88 16th-Nov-2011 06:49 pm (UTC)
I know, right? I regularly hold the marketing meeting in my head where I address a board of execs and say that the only people who WANT to steal files for their own use are people who are using them for FREE PROMOTIONS by getting friends hooked on shows, by making graphic and video promotions at a higher quality than their paid graphic designers, and overall building a community focused around a brand, which is the direction advertising is heading, if you check out marketing leaders like Joey Reiman and the influence they have. SO STOP SHOOTING YOURSELF IN THE FACE, MEDIA CORPORATIONS, BY LEGALLY PROSECUTING YOUR STRONGEST POTENTIAL CUSTOMERS.
celtic_thistle 16th-Nov-2011 06:36 pm (UTC)
This is so fucking unnecessary. Yet another example of a wealthy few controlling the whole country and government, fucking us all over for their own ends.
arisma 16th-Nov-2011 07:15 pm (UTC)
If this passes, when would it go into effect? Does anyone know?
toriningen 16th-Nov-2011 07:30 pm (UTC)
a popular saying comes to mind:

el bicho no es gratis.

and these guys sure are getting paid and petted to push things like this.
dark_puck 16th-Nov-2011 07:33 pm (UTC)
Be warned - LiveJournal just linked this post on Twitter.
(no subject) - Anonymous - Expand
un_fantasma 16th-Nov-2011 07:34 pm (UTC)
I swear I will find a way to move to Canada if this shitty fucking bill passes.
(no subject) - Anonymous - Expand
age_of_green 16th-Nov-2011 08:07 pm (UTC)
And how does this make us any better then China or Iran? Someone needs to point this out on live TV, that will shut this thing down real fast...
(no subject) - Anonymous - Expand
age_of_green The Mothership has a post about this too. 16th-Nov-2011 08:10 pm (UTC)
browneyedguuurl 16th-Nov-2011 08:11 pm (UTC)
Ugh! If Obama signs this into law I am done with him.
zombiebat 16th-Nov-2011 08:46 pm (UTC)
If I remember correctly, he's against this and has the whole 'contact your reps to stop this!' sort of thing going on his personal site.
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