During the SOPA/PIPA fight, many Internet users feared the bills would lead to rampant litigation and unreasonable enforcement actions by copyright holders. During protests in New York City on January 18, 2012, many of them created witty signs to explain the dangers.
It’s impossible to control who loans a friend lunch money, but that doesn’t mean financial regulation is dead. It just means that financial regulation has to limit itself to the kinds of transactions that take place at an industrial scale, among industrial players. There’s nothing wrong with the idea of a big, high-stakes industry having legally enforceable rules. But the key is that these regulations apply to industries, not individuals, families, or private groups. As an industrial regulation, copyright is alive and well. Yet copyright as a means of regulating cultural activities among private individuals isn’t dead, because it’s never been alive.
The World Intellectual Property Organization, founded in 1967 as a private group for “rights holders” (big companies from the entertainment, pharmaceuticals, and broadcast sectors) and now a specialized agency of the United Nations, writes the world’s major copyright treaties. In 1996, WIPO agreed upon the WIPO Copyright Treaty (WCT), and its cousin, the WIPO Performers and Phonograms Treaty (WPPT). There are two key aspects to the WCT: anti-circumvention and intermediary liability. Anti-circumvention requires laws that prevent “picking” digital locks. These locks are the subsystems hidden in digital devices that allow the use and playback of encrypted files while keeping them encrypted. Intermediary liability requires notice-and-takedown laws. Such laws make online intermediaries, such as ISPs, game servers, and payment processors, comply with requests to take down any file they host or be held to “strict liability”—that is, possibly be sued for damages if the file’s creator is deemed infringing.
In practice, recent national copyright laws (the Digital Millennium Copyright Act [DMCA] in the U.S. and the EU Copyright Directive [EUCD] in the EU) have gone beyond the WCT. In terms of anti-circumvention, the WCT only requires laws against breaking a lock to commit an act of copyright infringement. The DMCA makes it illegal to break all digital locks, period. Other countries around the world have followed suit. In terms of intermediary liability, since 2008, the U.S. Trade Representative has been working through closed-door “plurilateral” negotiations to create copyright treaties with its major trading partners. In concordance with domestic bills, these treaties—the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership (TPP)—have across the board sought to increase intermediary liability, while diminishing checks and balances related to it.
The overreach of these new copyright laws and proposals is large. In terms of anti-circumvention, laws of preventing the circumvention of all digital locks for any purpose make it illegal to determine what your computer is doing—including stopping it from doing things that you don’t like. The inevitable consequence is that bad things will happen on our computers. And since digital locks don’t work against determined attackers, the only way to keep files, programs, and keys out of wide circulation is to give rights holders the legal authority to demand that files be removed without court orders, to establish national censor walls that monitor Internet traffic and interdict requests for sites that rights holders have added to blacklists, and to ban tools that defeat any of this censorship.
The Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA), as well as related proposals, would ban the circumvention of Domain Name System (DNS) blocks and allow for IP blocking. DNS converts human-friendly Internet addresses (like ThePirateBay.se) into machine-readable numeric addresses (like 194.71.107.50). Efforts, like DNSSEC, to add a layer of security to DNS and detect and evade shenanigans at DNS servers would be illegal under SOPA and PIPA, as DNSSEC can’t (and shouldn’t be expected to) distinguish between the false DNS records doctored by a criminal, an oppressive government, and a record label. Conversely, SOPA and PIPA would require ISPs to block traffic from certain known IP addresses, such as 194.71.107.50, the address of ThePirateBay.se, and outlaw the tools that get around this block.
At the same time that anti-circumvention laws have threatened networks and other core technologies, laws upping the ante on intermediary liability have instantiated a regime of petty censorship and placed privacy under attack. Under current DMCA notice-and-takedown rules, it is already trivial to silence one’s political enemies or people with whom you simply disagree. Examples of takedown abuse include:
Police departments whose officers are recorded committing illegal acts claiming copyright on and demanding takedown of the videos of these acts
Diebold using takedown notices to suppress a memo detailing its complicity in selling flawed voting machines
“The Church of Scientology using takedown to attack opponents publishing secret church documents.”
Takedown notices are the measure of first resort for rich and powerful people and companies who are threatened by online disclosures of corruption and misdeeds. Moreover, there are almost never penalties for abusing the takedown process.
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.
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.
It’s not as though this is the first time we’ve had to rethink what copyright is, what it should do, and whom it should serve. The activities that copyright regulates—copying, transmission, display, performance—are technological activities. So when technology changes, it’s usually the case that copyright also has to change, and it is rarely pretty.
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.
Today’s big five movie studios are rightly proud of their maverick history. But they and the entertainment industry as a whole keep saying that their demands are the existential minimum. “Give us a kill switch for the Internet, the power to monitor and censor, the power to control all your devices, and the right to remake general purpose networks and devices as tools of control and spying, or we will die.”
If we have to choose between that vision of copyright and a world where more people can create and more audiences can be served, where our devices are our honest servants and don’t betray us, and where our networks are not designed for censorship and surveillance, then I choose the latter. I hope you agree.
BEFORE SOPA THERE WAS NET NEUTRALITY
JOSH LEVY
Free Press advocates for universal and affordable Internet access, diverse media ownership, vibrant public media, and quality journalism. As Internet Campaign Director, Josh Levy leads Fre
e Press’s work to secure an open Internet, strong protections for mobile phone users, public use of the public airwaves, and universal access to high-speed Internet. Before joining Free Press, Josh was the managing editor of Change.org, where he supervised the launch of more than a dozen issue-based blogs. Josh holds a B.A. in English and religion from the University of Vermont and an M.F.A. in integrated media arts from Hunter College.
Before there was SOPA, there was Net Neutrality. Indeed, the fight to keep the Internet open—to stop big companies from becoming the ultimate gatekeepers of what we do, say and share online—has a long history.
Back in 2005, Ed Whitacre, then-CEO of SBC (which soon joined with other Baby Bells to become the reconstituted AT&T) described his company’s vision for the Internet:
There’s going to have to be some mechanism for these people who use these pipes to pay for the portion they’re using. Why should they be allowed to use my pipes? The Internet can’t be free in that sense, because we and the cable companies have made an investment, and for a Google or Yahoo! or Vonage or anybody to expect to use these pipes [for] free is nuts!1
Years after former Senator Ted Stevens (R-AK) called the Internet “a series of tubes,” protestors made sure to express their displeasure at lawmakers’ shallow understanding of how the Internet works. In the photo above, an opponent of SOPA/PIPA tells Congress: “Hands Off My Tubes”
Whitacre’s so-called “shot heard ‘round the Web” jumpstarted the Net Neutrality movement, made up of more than two million activists—including Internet superstars like Tron Guy and Ask a Ninja—and a bipartisan collection of hundreds of organizations united under the SavetheInternet.com umbrella.
Net Neutrality’s initial rise as a hot-button issue was notable—suddenly a relatively obscure piece of Internet policy was coming up everywhere from the Daily Show to the messaging for Barack Obama’s first presidential campaign. And it was the first time Internet users realized they were a politically powerful constituency. As for tactics, it was the first time we, in the words of organizers at the time, “used the Internet to save the Internet.”
In fact, from 2006 through 2010, activists, civil society groups, academics, artists, bloggers, and everyday Internet users laid the groundwork for effective networked activism. If it weren’t for these efforts, the anti-SOPA Internet blackout on January 18, 2011 very likely would not have had close to the same reach and impact.
Net Neutrality: A Brief History
From the time most users started going online in the mid-1990s, they assumed that the Internet was simply “open.” When you clicked a link—and waited for your dial-up modem to transfer data at a glacial speed—there was no reason to think that MyWebsite.com wouldn’t load at the same rate as YourWebsite.com.
In fact, it’s essentially illegal for phone companies to give preferential treatment to websites or censor the content that flows over these telephone network connections.
That’s because these connections are just that: they’re transmission lines that carry network users’ messages. The phone company that provides the transmission line isn’t allowed to decide what you say or who you can talk to when you use its network.
This de facto “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.
Sir Tim Berners-Lee, the inventor of the World Wide Web, was one of the key Internet figures to speak out against SOPA/PIPA. Twitter is one of the ways he was able to help spread the word about the threat, including by re-tweeting messages from contributors to Hacking Politics.
But then along came cable and DSL. The advent of high-speed broadband connections in the home changed—and is still changing—the ways in which we communicate, learn about our communities, find entertainment, share information, and engage with politics.
This new delivery system also changed—for the worse—the way the Federal Communications Commission regulates Internet access. In 2002, the FCC responded to lobbying from the phone and cable companies and made the terrible decision to reclassify high-speed Internet access as an “information service” and exempt it from most of the Communications Act’s requirements. These rules had kept dial-up service neutral and required phone companies to open up their lines to competing ISPs.
In 2005’s controversial Brand X v. FCC case, the Supreme Court upheld the agency’s decision to deregulate. The FCC’s action and the Supreme Court ruling exempted broadband from some of the longstanding “open access” requirements that apply to other communication services.2
It was the moment executives at companies like AT&T, Verizon, Comcast, and Time Warner Cable had been waiting for. They had started to both fear and loathe the Internet’s emergent, people-powered culture. Their top-down corporate empires were built not on innovation, free speech, and inclusion, but on controlling markets and squelching new competition.
The phone and cable companies’ aggressive push to control not only the pipes we use to communicate, but the content that flows through those pipes, prompted Internet users to act. It was time to start the movement to Save the Internet.
The SavetheInternet.com coalition launched in April 2006. It quickly grew to include more than eight hundred organizations, an unlikely alliance covering the political spectrum and including groups like the Christian Coalition and MoveOn.org as well as a host of tech innovators and two million online activists signed a petition supporting Net Neutrality, and thousands of bloggers took up the cause. This show of public support for Net Neutrality derailed a dangerous overhaul of the Federal Communications Act that would have failed to protect Internet openness. This public advocacy morphed into a movement to “Save the Internet” that continues to inspire the larger Internet freedom movement. Sound familiar?
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.
These incumbent companies, looking to preserve their old business models in the face of pro-consumer innovations, funneled tens of millions of dollars to nearly five hundred Washington lobbyists. Their mission: drive a wedge into the nonpartisan coalition of Net Neutrality supporters, politicize the issue, further consolidate industry control over Internet access, and kill Net Neutrality before the public got a say. The telecoms invested in fake grassroots operations, corporate-funded “Astroturf” groups that spread misinformation about Net Neutrality to sway policymakers and the media.
SCARE TACTICS: Just as they did during the Net Neutrality battle, incumbent industries rolled out a campaign of scare tactics claiming SOPA/PIPA were needed to stop the loss of American jobs. See these screencaps from a “scary” web video called “Stolen Jobs,” which tries to link file sharing and job losses. Of course, the advertisement was created by a film industry front-group called “Creative America.”
The strategy worked. Thanks to the rise of these industry-funded groups—which helped turn technological neophytes like former Fox News host Glenn Beck into rabid Net Neutrality opponents—Net Neutrality went from being a no-brainer to a supposedly partisan issue that divided left and right, progressive and conservative.
This effort to re-engineer the politics of Net Neutrality succeeded in a
nother way: FCC Chairman Julius Genachowski lost his will to check the power of these powerful incumbents. He and the agency he led should have tried to clarify the FCC’s authority over broadband and ensure that broadband providers were subject to the same oversight as dial-up ISPs. But after a series of backroom meetings with big telecoms and tech giants, Genachowski deemed the strategy to “reclassify” broadband as a basic transmission service as too politically risky.
(See Alexis Ohanian’s Internet freedom advocacy for a look at the current state of popular Internet activism: http://www.buzzfeed.com/jwherrman/why-is-this-man-running-for-president-of-the-inter).
After several failed attempts at compromise, Genachowski’s FCC adopted “Open Internet” rules in December 2010, but it did so using much of the same legal framework that was shot down in the Comcast case. And the rules the FCC adopted are too weak. They offer decent protections for people using wired broadband connections, but almost no protections for the mobile Internet—which will soon be the predominant way most people get online.
Soon after the FCC passed these rules, Verizon announced it was suing; even these industry-friendly regulations were too much for the phone giant. That lawsuit is moving through the same court that ruled in Comcast’s favor last time, and the new case could be decided as early as spring 2013. If the FCC loses—and many fear that it will—then it’s back to the drawing board: there will be no Net Neutrality protections on the books.
The millions of Internet users who became engaged during the Net Neutrality fight spent 2011 getting ready for another big threat to the open Internet to emerge. It didn’t take long.
Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet Page 9
