Technology Groups Request Significant Revisions to SOPA, PROTECT IP

Wikipedia, which figured prominently in last week’s Web blackouts, said in a recent blog post by Sue Gardner, executive director of the Wikimedia Foundation, that it’s opposed to negotiations that aim to fix or revise SOPA and PIPA. “The message of the Wikipedia blackout, and the other responses to SOPA and [PIPA], wasn’t ‘Let’s talk about how we can combat online copyright infringement.’ It was: ‘Don’t hurt the Internet. It’s too important. Let us do our work. Let us learn and create and share.'”

Mozilla is “unconvinced that existing copyright laws do not provide adequate protections necessary to deal with piracy by foreign rogue sites on the Internet,” General Counsel Harvey Anderson told us Tuesday. “Without a comprehensive and critical examination of the actual problem, informed by both the content and technology industries, it is premature to conclude that any additional legislative action is required. At this point, we would like to see an industry-led, multi-stakeholder process to fully evaluate the stated problem, the gaps under current laws, and then discuss solutions that meet those needs while preserving the benefits of the open web.”

LinkedIn said it does not support either SOPA or PIPA in their current forms. “Any legislation crafted to this end must be careful to not create a chilling effect on the First Amendment, keep the DMCA intact, and not create a private right of action,” a spokesman told us Monday. Facebook’s SOPA/PIPA Web page said the bills “contain overly broad definitions and create a new private cause of action against companies on the basis of those expansive definitions, which could seriously hamper the innovation, growth, and investment in new companies that have been the hallmarks of the Internet.”

Even a group representing those who create music said the bills failed to address the concerns of individual content creators who rely on the Web for sales and collaboration. “It seems the climate is not right to move forward with existing versions of the bills,” said Casey Rae-Hunter, deputy director for the Future of Music Coalition. “There was definitely a need to consult with a larger group of folks who weren’t represented by the RIAA and MPAA,” he said. The Future of Music Coalition is a nonprofit group that represents musicians and artists seeking fair compensation for their work.

Technology groups say the bills’ most onerous provisions are those that would compel ISPs to block the resolution of domains owned by alleged infringing sites. Though the language differs slightly in each bill, Section 3 of PIPA and Section 103 of SOPA require operators of DNS resolvers to prevent the domain name of an alleged infringing site from resolving to the domain name’s Internet protocol address. Cybersecurity experts have long said the provision could undermine and interfere with the deployment of Domain Name System Security Extensions (DNSSEC), an Internet security update that guarantees accurate resolution of IP addresses.

Both Leahy and Smith said they would set aside the provision for further study, but neither has presented a manager’s amendment to remove the provisions completely. Zynga said in a recent blog post it’s particularly concerned that the proposals would “tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security” (http://goo.gl/O3myK). “The overly broad provisions we've seen in the pending SOPA and [PIPA] bills could be used to target legitimate U.S. sites and chill innovation at a time when it is needed most,” the company said in a separate statement this week. The Future of Music Coalition said that in order for lawmakers to move the legislation forward they must ensure that the DNS blocking provisions in the bill are “really off the table.”

The next contentious issue is a provision in both bills that gives the attorney general authority to force search engines to de-list so-called foreign “rogue” websites. Under Section 102 of SOPA, the attorney general would require search engines to prevent “foreign infringing sites” from “being served as a direct hypertext link” within five days of being served a court order to do so. Changes to this provision were offered in Smith’s pending manager’s amendment but have not yet been approved. Section 3 of PIPA authorizes the attorney general to require search engines and other Internet companies to cease advertising and linking the page in their search results.

Google, among other opponents, said the provision could violate free speech and free expression rights and would use methods similar to those employed by China’s online censorship regime (http://xrl.us/bmo3ph). Yahoo said the provisions would “stifle innovation, require legitimate online companies to censor content, and create a new flood of frivolous litigation, all the while failing to get at the real problem of foreign, rogue web sites that distribute illegal content.”

Technology groups said they also oppose any provisions that could potentially weaken the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). Title II of the 14-year-old copyright law offers conditional safe harbor provisions to online service providers and intermediaries as long as they comply with DMCA takedown notices among other conditions. But both PIPA and SOPA would create additional legal risks for companies who do not respond to court orders to remove or censor infringing content within a prescribed time period.

Mozilla’s Anderson said there’s “ample evidence that U.S. anti-piracy plaintiffs have been able to obtain effective relief in both U.S. and international courts against rogue foreign sites using existing statutes. Today’s remedies, like those afforded by the DMCA, while not perfect, are proportionately balanced so that they are not toxic to commerce and innovation on the Internet."

The Future of Music Coalition said weakening DMCA provisions would prevent new technology startups from getting off the ground. “Instead of just two guys in a garage [innovating] you would need twenty lawyers. New companies would never get funding,” Rae-Hunter said. But having to “lawyer up” is only part of the problem, said a NetCoalition spokesman. “The DMCA is the foundation for the Internet companies that have grown up,” he said. “To have a world where they can be fully compliant with the DMCA but still be accused of facilitating someone’s infringement doesn’t make sense.”

Another sticking point for the technology community is a set of the provisions that offer copyright holders the ability to pursue a private right of action against so-called infringers and Web intermediaries who fail to act on their behalf. The technology community objected to such provisions, saying it increases their risk of being sued, has the potential to chill innovation, and makes it more difficult for the next generation of digital innovators to emerge.

Section 4 of the PIPA enables a “qualifying plaintiff” to seek temporary restraining orders, a preliminary injunction, or injunctions against the “owner or operator of such Internet site dedicated to infringing activities.” The “qualifying plaintiff” may then serve advertising companies and payment networks with a court order that requires them to cease doing business with the alleged infringing site. If an Internet intermediary “willingly fails to comply” with the court order, the “qualifying plaintiff” may then bring an action for injunctive relief against them.

SOPA’s original text offers a slightly different track. Section 103 of the bill authorizes a “qualifying plaintiff” to send notice to the registrants, owners and operators of an alleged infringing site to cease their infringement activities. If the infringing activities continue, the “qualifying plaintiff” may then serve advertising companies and payment networks with a court order that requires them to cease doing business with the alleged infringing site. Finally, if the “qualifying plaintiff” is still unable to prevent the site from engaging in infringing activities, a court will compel the relevant ad and payment networks to intervene.

Tech companies said the House and Senate OPEN Act, authored by Rep. Darrell Issa, R-Calif., and Sen. Ron Wyden, D-Ore., present a more viable alternative to pursuing the online piracy of U.S. copyrights. Rather than giving the Justice Department authority over foreign infringement cases, the OPEN Act gives the International Trade Commission more power to investigate cases involving copyright infringement abroad. Technology groups say the OPEN Act is preferable because it employs and bolsters an existing judicial court to mediate international copyright disputes and provides safe harbor provisions to Internet companies who assist in the pursuit of alleged foreign infringing websites.

"At the end of the day we want the same thing as everyone else we wants,” said Rae-Hunter. “A legitimate digital marketplace where creators are equitably compensated for their contributions. Enforcement is one side of the coin. The other side is finding out which business models people want to work with. We can’t just expect the anti-piracy measures to solve all the problems. We have to work with consumers and not just against them.”