Screenshot of the 1996 Internet blackout in opposition to the Communications Decency Act.
Screenshot of Wikipedia’s home page on January 18, 2012.
As we strive to be as inclusive as possible, and in the spirit of the creative chaos of the Internet, this book mashes up dozens of contributions into a coherent chronological narrative of the blow-by-blow of the anti-SOPA/PIPA organizing effort. It opens in the early fall of 2010, when the editors of this book joined the fray. We have also included what we hope are insightful analyses of what happened, from a variety of different vantage points. Some essayists were engaged in the anti-SOPA/PIPA cause for more than a year—and some were party to Internet freedom efforts for years before that—while others joined the fight in its waning days, even while playing critical roles therein. So there are necessarily some redundancies and some jumps forward and backward in time, but you’re smart enough to keep it all straight.
Some brief explanations of frequently-cited legislation:
Digital Millennium Copyright Act (DMCA) is a comprehensive copyright bill that Congress approved in 1998. References herein to the DMCA typically refer to the so-called “Safe Harbor” provisions that passed as part of the larger bill. The idea behind “Safe Harbor” is that a website or platform could let its users upload content, but not have to fear getting sued by copyright holders when their users posted unlicensed content. In exchange for this shield from liability, site operators must remove infringing content upon being alerted of its presence.
Prioritizing Resources and Organization for Intellectual Property Act (PRO-IP Act), passed by Congress in 2008, ten years after the DMCA. It is the PRO-IP Act that United States law enforcement agencies claim gives them power to seize domain names of sites registered in the U.S. and accused of facilitating intellectual property infringement. But the legality of the application of this power to the distribution of non-tangible property is disputed.
Combating Online Infringement and Counterfeits Act (COICA), S.3804, was introduced by Senator Patrick Leahy (D-VT) on September 20, 2010 but never became law. COICA would have allowed the government to seek court orders to shut down websites deemed to be “dedicated to infringing activities,” and would have forced Internet service providers (ISPs), domain name registrars, payment processors, and others to cease doing business with them. It would also have allowed for the creation of a “blacklist” of Internet domain names that the government alleged to be infringing, but for which it had not achieved such court orders. ISPs and others would be immune from any liability for blocking access to, or otherwise refusing to do business with, sites on this blacklist.
Commercial Felony Streaming Act (Ten Strikes), S.978, was introduced by Amy Klobuchar (D-MN) on May 12, 2011 but never became law. It would have made it a felony crime to engage in unauthorized streaming of copyrighted works for “commercial advantage or personal financial gain.” Those accused of streaming copyrighted works more than ten times would have faced jail time and stiff fines.
Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA), S.968, was introduced by Senator Patrick Leahy on May 12, 2011 but never became law. PIPA essentially adopted the court order provisions of COICA, while dropping the blacklist of domain names outlined above. It was limited to the targeting of foreign sites (ie: those not registered with domestic domain names), but it was clear that many of its proponents yearned for legislation affecting U.S. domains too: They’d backed COICA, after all, and supported the PRO-IP domain seizures. PIPA also created the possibility that site operators would be prohibited from merely linking to disputed websites, and that search engines would be forced to remove these sites from users’ search results. The bill contained a much-debated provision requiring an “information location tool” to “remove or disable access to the Internet site” named in court orders.
Stop Online Piracy Act (SOPA), H.R. 3261, was introduced by Lamar Smith (R-TX) on October 26, 2011 but never became law. Like COICA and PIPA, SOPA would also have compelled ISPs, advertisers, payment processors, and “information location tools” (eg: search engines) to cease interaction with sites that were “dedicated to the theft of U.S. property.” SOPA’s provisions were thought to cover platforms for user-generated content—even if the platform’s owners harbored no intent to host infringing material, and even if they were unaware of said content. It was ostensibly targeted at foreign sites—bad enough in its own right—but COICA’s proponents had also targeted the domestic web, making clear their ultimate designs. Many feared that under SOPA domestic sites like search engines or social media platforms that merely linked to targeted foreign sites could also be penalized.
HACKING POLITICS: TLDR
1. “… This Isn’t a Bill About Copyright”
Aaron Swartz (Internet freedom activist and founder of Demand Progress)
For me, it all started with a phone call.
It was way back in September 2010, when I got a phone call from my friend Peter.
“Aaron,” he said. “There’s an amazing bill you have to take a look at.”
“What is it?” I said.
“It’s called COICA. The Combatting Online Infringement and Counterfeiting Act.”
“Oh, Peter,” I said. “I don’t care about copyright law. Maybe you’re right, maybe Hollywood is right, but either way is it really such a big deal? I’m not going to waste my life fighting over a little issue like copyright. Health care. Financial reform. Those are the sorts of issues I work on. Not something obscure like copyright.”
I could hear Peter grumbling. “Look, I don’t have time to argue with you. But it doesn’t matter for right now. Because this isn’t a bill about copyright.”
“It’s not?”
“No, it’s a bill about freedom of speech.”
Mike Masnick (CEO and co-founder of Techdirt)
The way that the law … would have worked is that the Justice Department could ask a court to declare a site as a “pirate” site and then get an injunction that would force the domain registrar or registry to no longer resolve that domain name—you’d land on an error message or be redirected to a government notice instead.
Aaron Swartz
I knew that if the Supreme Court had one blind spot around the First Amendment, more than anything else—more than slander or libel; more than pornography; more, even, than child pornography—it was copyright. When it came to copyright it was like part of the justices’ brains shut off and they totally forgot about the First Amendment. You got the sense that, deep down, they didn’t even think the First Amendment applied when copyright was at issue.
Mike Masnick
Two very relevant cases on this front are Near vs. Minnesota and Center for Democracy and Technology vs. Pappert. Near vs. Minnesota involved striking down a state law that barred “malicious” or “scandalous” newspapers from publishing, allowing the state to get a permanent injunction against the publications of such works. In most cases, what was being published in these newspapers was pure defamation. Defamation, of course, is very much against the law (as is copyright infringement), but the court found that barring the entire publication of a newspaper because of some specific libelous statements barred other types of legitimate speech as well. The court clearly noted that those who were libeled have recourse to libel law to sue the publisher, but that does not allow for the government to completely bar the publication of the newspaper.
David Segal (executive director of Demand Progress)
COICA would’ve created a list of “rogue” websites that the government could block access to with minimal due process. Perhaps even worse: it would create a second accounting of sites that wouldn’t formally be blocked—because the Feds only had much weaker cases against them, even by the bill’s lax standards—but would be put on a separate, public, list of sites that the U.S. government wasn’t very happy with. Internet Service Providers would then be encouraged to steer users clear of them.
Aa
ron Swartz
It’s so easy to accidentally copy something. So easy, in fact, that we found the leading Republican supporter of COICA, Orrin Hatch, had illegally copied a bunch of code into his own Senate website.
Josh Levy (Internet Campaign Director for Free Press)
In 2007, Comcast blocked file-sharing protocol BitTorrent for any use at all—even downloading the Bible. This forced the FCC to take action and sanction Comcast, which in turn led to Comcast suing the FCC and claiming the agency lacked the authority to regulate Internet access. Given the FCC’s prior deregulatory decisions upheld in the Brand X case, another federal court ultimately agreed with Comcast.
Then came candidate Obama and his promise that he’d “take a back seat to no one on Net Neutrality.” That stance, and FCC Chairman Julius Genachowski’s early promises, inspired the hope that Net Neutrality would finally be protected once and for all. But the comments from Obama and Genachowski also prompted the phone and cable companies to do what they do best: fight back with lobbyists and lawyers.
Mike Masnick
Remember that YouTube, which is now considered by Hollywood to be mostly “legit,” was once derided as a “site dedicated” to “piracy” just a few years ago. It’s no surprise that the Justice Department—with a bunch of former RIAA/MPAA lawyers on staff—would love to have powers to shut down many sites, but it’s difficult to see how such a law would be Constitutional, let alone reasonable. And finally, we must ask: why does the U.S. government consistently seek to get involved in what is, clearly, a civil business model issue?
Ron Paul (former U.S. Representative for Texas’ 14th Congressional District)
Indeed, important media and political figures in the U.S. (such as Secretary of State Hillary Clinton) frequently bemoan the Internet’s “lack of a gatekeeper.” University of Chicago law professor and former Obama Administration “regulatory czar” Cass Sunstein has suggested that the federal government create an office to debunk “conspiracy” theories on the Internet. Former President Bill Clinton, that champion of honesty, has even suggested the creation of an entirely new cabinet department devoted to “fact checking” the Internet! These proposals are done in the name of preventing the spread of factual errors, misinformation, and “conspiracy theories.”
Josh Levy
“Network Neutrality” forms the basis for the Internet’s historical openness. Sir Tim Berners-Lee could have adopted proprietary technologies to build his vision of a web of interconnected documents. Instead, he opted for openness when inventing the software that became the Web.
Dave Dayen (reporter for Firedoglake)
At the exact same time Senate Democrats voted down net neutrality repeal, many of them were scheming to bring so-called anti-piracy legislation to the floor. The two bills coming up at the same time represents a common, devious tactic: make a big show of solidarity with a community or interest group on one bill, while selling them out on the side. So if the interest groups complained, individual members could simply point to the other vote, and add, “This other thing isn’t that bad, trust us, we just showed you we’re on your side, right?”
Zoe Lofgren (U.S. Representative for California’s 19th Congressional District)
I’ve represented areas of Silicon Valley as a Member of Congress since 1995. In those years in the House, I’ve tried to ensure that copyright enforcement does not come at the expense of technology, innovation, or privacy and free speech rights. This has become even more important as the Internet developed and became a part of our daily lives. Championing technology and free speech when considering copyright in the digital age can often be a lonely position in Congress.
Mike Masnick
Case law around the First Amendment is clear that you cannot block a much wider variety of speech just because you are trying to stop some specific narrow speech. Because of the respect we have for the First Amendment in the U.S., the law has been pretty clear that anything preventing illegal speech must narrowly target just that kind of speech. Doing otherwise is what’s known as prior restraint.
Cory Doctorow (writer and co-editor of “Boing Boing”):
In perhaps the ultimate abuse of intermediary liability, Viacom, in a lawsuit against Google, argued that YouTube was complicit in acts of infringement because it allowed its users to mark videos as “private.” Private videos couldn’t be checked by Viacom’s copyright-enforcement bots, and Viacom wanted the privacy flag banned. Under Viacom’s legal theory—supported by all the major studios, broadcasters, publishers, and record labels—online services should not allow users to share files privately, or, at the very least, must allow entertainment corporations access to all private files to make sure they aren’t copyrighted.
Mike Masnick
The Pappert case—a much more recent case—involved a state law in Pennsylvania that had the state Attorney General put together a blacklist of websites that were believed to host child pornography, which ISPs were required to block access to. Again, child pornography is very much illegal (and, many would argue, much worse than copyright infringement). Yet, once again, here the courts tossed out the law as undue prior restraint, in that it took down lots of non-illegal content as well as illegal content … One of the complaints we’ve heard is that such past prior restraint cases do not apply here since “copyright infringement is illegal.” But, both defamation and child pornography also break the law. The point is that in all of these cases, there are existing laws on the books to deal with that specific content, which can be handled with a scalpel. Adding an additional layer that takes down an entire publication is where it stretches into clear censorship.
Cory Doctorow
This is like requiring everyone to open up their kids’ birthday parties to enforcers from Warner Music to ensure that no royalty-free performances of “Happy Birthday” are taking place. It’s like putting mandatory spy-eye webcams into every big-screen TV to ensure that it’s not being used to run a bootleg cinema. It’s like a law that says that each of the big six publishers should get a key to every office in the land to ensure that no one is photocopying their books on the sly. This is beyond dumb. It’s felony stupidity.
Mike Masnick
While much of the case focused on the fact that the techniques ISPs were using took down adjacent websites on shared servers, the court did also note that taking down an entire URL is misguided in that “a URL … only refers to a location where content can be found. A URL does not refer to any specific piece of static content—the content is permanent only until it is changed by the web site’s webmaster … The actual content to which a URL points can (and often does) easily change without the URL changing in any way.” The argument was that taking down a URL, rather than focusing on the specific, illegal content constituted an unfair prior restraint, blocking the potential publication of perfectly legitimate content.
Aaron Swartz
If you wanted to censor the Internet, if you wanted to come up with a way the government could shut down access to particular websites—this bill might just be the only way to do it. If you said it was about pornography, it’d probably get overturned by the courts—just like that adult bookstore case. But by claiming it was about copyright, it might just sneak through. And that was terrifying, because copyright was absolutely everywhere. If you wanted to shut down WikiLeaks, it’d be a bit of a stretch to claim you were doing it because they were distributing child pornography. But it wouldn’t be hard at all to claim they were violating copyright.
Patrick Ruffini (Republican Party political strategist, cofounder of Engage)
When I first read the bill that October, the notion that a bill like this could see the light of day was jaw-dropping. On the one hand, elected officials celebrated the Internet, used it in their campaigns, and extolled its disruptive potential in visits to Silicon Valley. Yet, under the guise of anodyne anti-piracy measures, we were about to give the U.S. government the power to disrupt its core architecture by allowing the U.S. Department of J
ustice the power to blacklist websites and tinker with the DNS system in ways the vast majority of Internet engineers thought unworkable.
Cory Doctorow
When movies were invented, Thomas Edison, who held key film-related patents, claimed the right to authorize the production of films, tightly controlling how many movies could be made each year and what subjects these movies could address. The filmmakers of the day hated this, and they flew west to California to escape the long arm of Edison’s legal enforcers in New Jersey. William Fox, Adolphe Zukor, and Carl Laemmle, of Fox Studios, Famous Players, and Universal, respectively, founded the great early studios because they believed that their right to expression trumped Edison’s proprietary rights.
Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet Page 2
