For the past several days, Wikipedia editors have been discussing whether to stage a protest against the proposed Stop Online Piracy Act (SOPA). I’ve been asked to give some comments on the bill and explain what effect the proposed legislation might have on a free and open Internet as well as Wikipedia. My goal in this blog post is to provide some information and interpretation that I hope will be helpful to Wikipedia editors as they discuss the bill.
SOPA has earned the dubious honor of facilitating Internet censorship in the name of fighting online infringement. The Wikimedia Foundation opposed that legislation, but we should be clear that Wikimedia has an equally strong commitment against copyright violations. The Wikimedia community, which has developed an unparalleled expertise in intellectual property law, spends untold hours ensuring that our sites are free of infringing content. In a community that embraces freely-licensed information, there is no room for copyright abuses.
We cannot battle, however, one wrong while inflicting another. SOPA represents the flawed proposition that censorship is an acceptable tool to protect rights owners’ private interests in particular media. That is, SOPA would block entire foreign websites in the United States as a response to remove from sight select infringing material. This is so even when other programs like the Digital Millennium Copyright Act have found better balances without the use of such a bludgeon. For this reason, we applaud the excellent work of a number of like-minded organizations that are leading the charge against this legislation, including the Electronic Frontier Foundation, Public Knowledge, Creative Commons, Center for Democracy and Technology, NetCoalition, the Internet Society, AmericanCensorship.org, and others.
On Tuesday, after receiving input on the original version of the bill, the House Judiciary Committee issued a new version of SOPA for its mark-up scheduled for this coming Thursday. A vote on that mark-up may take place on the same day. At the end of this article, I provide a summary of the most relevant parts of this new version of SOPA as well as a summary of the legislative process (which you can also follow here).
In honesty, this new version of the bill is better (and credit goes to the Judiciary staff for that). But, it continues to suffer from the same structural pitfalls, including its focus on blocking entire international sites based on U.S.-based allegations of specific infringement. Criticism has been significant. Representative Darrell Issa, a California Republican, for example, felt the bill “retains the fundamental flaws of its predecessor by blocking Americans’ ability to access websites, imposing costly regulation on Web companies and giving Attorney General Eric Holder’s Department of Justice broad new powers to police the Internet.”
Members of our community are weighing whether a protest action is appropriate. I want to be very clear: the Wikimedia Foundation believes that the decision of whether to stage a protest on-wiki, such as shutting down the site or putting a banner at the top, is a community decision. The Wikimedia Foundation will support editors in whatever they decide to do. The purpose of this post is to provide information for editors that will aid them in their discussions.
I’ve been asked for a legal opinion. And, I will tell you, in my view, the new version of SOPA remains a serious threat to freedom of expression on the Internet.
- The new version continues to undermine the DMCA and federal jurisprudence that have promoted the Internet as well as cooperation between copyright holders and service providers. In doing so, SOPA creates a regime where the first step is federal litigation to block an entire site wholesale: it is a far cry from a less costly legal notice under the DMCA protocol to selectively take down specified infringing material. The crime is the link, not the copyright violation. The cost is litigation, not a simple notice.
- The expenses of such litigation could well force non-profit or low-budget sites, such as those in our free knowledge movement, to simply give up on contesting orders to remove their links. (Secs. 102(c)(3); 103(c)(2)) The international sites under attack may not have the resources to challenge extra-territorial judicial proceedings in the United States, even if the charges are false.
- The new version of SOPA reflects a regime where rights owners may seek to terminate advertising and payment services, such as PayPal, for an alleged “Internet site dedicated to theft of U.S. property.” (Sec. 103(c)(2)) A rights owner must seek a court order (unlike the previous version) (Sec. 103(b)(5)). Most rights owners are well intentioned, but many are not. We cannot assume that litigious actions to block small sites abroad will always be motivated in good faith, especially when the ability to defend is difficult.
- Although rendering it discretionary (Secs.102(c)(2)(A-E); 103(c)(2)(A-B)), the new bill would still allow for serious security risks to our communications and national infrastructure. The bill no longer mandates DNS blocking but still allows it as an option. As Sherwin Siy, deputy legal director of Public Knowledge, explained: “The amendment continues to encourage DNS blocking and filtering, which should be concerning for Internet security experts . . . .”
- The Electronic Frontier Foundation advises that the new proposed legislation still targets tools that might be used to “circumvent” the blacklist, even though those tools are essential to human rights activists and political dissidents around the world.
More specifically with respect to Wikimedia, the new version is an improvement, but, in addition to the reasons listed above, it remains unacceptable:
- Wikipedia arguably falls under the definition of an “Internet search engine,” and, for that reason, a federal prosecutor could obtain a court order mandating that the Wikimedia Foundation remove links to specified “foreign infringing sites” or face at least contempt of court sanctions. The definition of “foreign infringing sites” is broad and could well include legitimate sites that host mostly legal content, yet have other purported infringing content on their sites. Again, many international sites may decide not to defend because of the heavy price tag, allowing an unchallenged block by the government.
- The result is that, under court order, Wikimedia would be tasked to review millions upon millions of sourced links, locate the links of the so-called “foreign infringing sites,” and block them from our articles or other projects. It costs donors’ money and staff resources to undertake such a tremendous task, and it must be repeated every time a prosecutor delivers a court order from any federal judge in the United States on any new “foreign infringing site.” Blocking links runs against our culture of open knowledge, especially when surgical solutions to fighting infringing material are available.
- Under the new bill, there is one significant improvement. The new version exempts U.S. based companies – including the Wikimedia Foundation – from being subject to a litigation regime in which rights owners could claim that our site was an “Internet site dedicated to theft of U.S. property.” Such a damnation against Wikimedia could have easily resulted in demands to cut off our fundraising payment processors. The new version now exempts U.S. sites like ours. (Sec. 103(a)(1)(A)(ii))
In short, though there have been some improvements with the new version, SOPA remains far from acceptable. Its definitions remain too loose, and its structural approach is flawed to the core. It hurts the Internet, taking a wholesale approach to block entire international sites, and this is most troubling for sites in the open knowledge movement who probably have the least ability to defend themselves overseas. The measured and focused approach of the DMCA has been jettisoned. Wikimedia will need to endure significant burdens and expend its resources to comply with conceivably multiple orders, and the bill will deprive our readers of international content, information, and sources.
[1.] http://www.cato-at-liberty.org/the-new-sopa-now-with-slightly-less-awfulness/ ;
[2.] See http://www.chillingeffects.org/resource.cgi?ResourceID=101 (providing a list of articles documenting abuses that certain rights owners have engaged in within the DMCA context).
[3.] An “Internet Search Engine” is defined as “a service made available via the Internet whose primary function is gathering and reporting, in response to a user query, indexed information or web sites available elsewhere on the Internet.” Sec. 101(15)(A). This definition does not include services that retain “a third party that is subject to service of process in the United States to gather, index, or report information available elsewhere on the Internet.” Sec. 101(15)(B). Although not conceding the point, Wikimedia arguably does not appear to fall under this exemption.
[4.] Sec. 102(c)(3)(A)(i). To ensure compliance with orders issued under Section 102, the Attorney General may bring an action for injunctive relief against any Internet Search Engine that knowingly and willfully fails to comply with the requirements of section 102(c)(2)(B) to compel such entity to comply with such requirements.
[5.] Generally speaking, a “foreign infringing site” is any U.S.-directed site, used by users in the United States, being operated in a manner that would, if it were a domestic Internet site, subject the site to liability for criminal copyright infringement, as well as other federal copyright or trade secret violations. See Sec. 102(a)(1-2).