From Rogue States to Rogue Sites? - ›SOPA‹ and ›PIPA‹

The EditorialFrom Rogue States to Rogue Sites?
›SOPA‹ and ›PIPA‹

„Rogue sites“ - for me that's a contender for „Worst Word of the Year“ - even if this year is just 18 days old.

In its SOPA and PIPA proposals „rogue“ is what US legislature choose to call those websites that are bent, with malicious intent, on doing harm to the United States of America - its people and its economy and industry.

And even if I did not actually come across the word „rogue state“ when I first noticed the connection between both „rogue states“ and „rogue sites“, I flinched – and I remembered the days when the war against the “axis of evil” began.

Both proposals are debated lively, including emotional responses and mutual accusations.

To make up ones mind in this situation is no easy task; apparently neither of both initiatives can be looked at in a calm and objective way – that's what I learnt from struggling with the topic.

But – what's it all about? I don't want to form an opinion without understanding what it is we're quarrelling about.

Author Janet Morris wrote on this1:
SOPA means Stop Online Piracy and PIPA means Protect Intellectual Property. These are good ideas. However, no single country can take it upon itself to do this. Censoring the worldwide web is the modern equivalent of book burning. Many of my books have been pirated; I have had enough IP stolen to have made me independently wealthy, and I still say that the free exchange of ideas is critical to the survival of the human race. Enforce the Berne Convention if you can. But don't use internet piracy as an excuse for internet tyranny. And most especially do not allow any single country to take it upon itself to censor the internet. Every country that has tried to limit the access of its citizens to a free exchange of ideas online has suffered the hatred of its populace. The United States, of all countries, must not fall into the trap of imposing censorship by any other name. And if people like me can be protected for the thieves of ideas, if my work in fiction and non-fiction that has been stolen can be returned to me, and the money others have made off my work given back to me, that's great. But it's not worth it to me or any other creator to be protected if that protection brings with it a loss of basic freedoms for all. The internet is pan-national; it is the solvent that will wash away the unnatural limitations of nationalism as we enter this new age of ideas without boundaries. So perhaps we need new rules for the epoch of Ideas Without Boundaries, but they must be ideas that facilitate the exchange of information and not leave it to a few to decide what should be known by the many. We need to keep the information highway open so that ideas can travel where they must for the benefit of us all.
No Sopa - No PIPARight now, two proposals for US laws are being debated, that will have tangible repercussions all across the internet. They have been labelled „Stop Online Piracy Act“ (SOPA) and „Protect Intellectual Privacy Act“ (PIPA), respectively. Both labels are quite self-explanatory.

First, SOPA. This proposal is debated in Congress.

Its intent is to create a system through which access to internet sites can be blocked if the copyright of US companies, artists and others appears to be infringed upon.

In other words, up close: should the US Department of Justice or its organisations or the holder of a copyright know or even just grow suspicious that an infringement on copyrights has been performed, looms ahead or even might appear likely, the DoJ's organisations are free to act.
Wikipedai war down heuteWithout an actual verdict measures can be initiated against any(!) websites outside(!) the US, that are even suspected(!) to serve "only limited purpose or use other than infringement (...)2" – and that could be linked, in whole or partially, to website sin the US or could be used by US citizens.

This would mean that all search engines, social networks and DNS companies would be forced through a court order to prevent access to such a site.

Operating a platform for illegal streaming of copyrighted material would be a criminal act punishable by imprisonment for up to five years.
Author Jay Lake commented3:
SOFA and PIPA represent a significant overreach by entrenched corporate and political interests here in the United States, very much against the traditions of Internet freedom and the direct interests of individual content creators and consumers.
The problem with SOPA is it is an overengineered solution. Like setting fire to your house to get rid of ants in the kitchen.
It makes it effectively possible for a wealthy entity (MPAA, Disney, etc.) to shut down almost any Web site, and to censor linksharing etc. So no, it's not better than piracy, in the sense that the cure is worse than the disease
Screenshot von Lamar Smith HomepageShould this proposal turn into a law, several things would “happen“ simultaneously:
First, there is a reversal of the burden of proof, in itself a serious matter. Any website – even if it only appears suspicious – can be blocked if the questionable contents have not been removed within five days after notification or an agreement has been reached. .

So the company that wants a site blocked no longer needs to prove anything – the web site's master or host must prove their innocence.
And it is completely irrelevant whether the laws of the country in which the website is hosted (Germany, for example) require a different procedure.

Chairman Smith, one of the initiators of SOPA, commented on the inability of SOPA's opponents to understand the true intent of the proposal4:
It’s disappointing that some SOPA critics appear not to have read the bill. The Stop Online Piracy Act only targets foreign websites that are primarily dedicated to illegal activity. It does not grant the Justice Department the authority to seek a court order to shut down any website operated in the U.S.
So, SOPA will only be targeting websites outside the US (as a polemical abstract: „why are you making such a fuss, citizens“) and will only concern itself with shutting down websites outside the USA that are involved in illegal activities.

Screenshot Reporters without BorderChairman Smith apparently can't imagine that there is more at stake than the interests of a US website.

The rising wave of protests indicates something that already could be glimpsed at in the „Arab Spring“ or the „Gutten-Wiki“ effort: Inside the World Wide Web a network has grown that must be perceived as a force of its own. Extremely heterogeneous, highly ambivalent in its goals and motivations,  far from being pure and plain – but impossible to ignore. It's not always the same activists that hurl themselves into battle for the topic at hand, but there's no place to reach a large number of people and organize resistance as fast and easy as on the net. This amorphous mass that simply defies description must strengthen itself facing what SOPA will mean.
And then there's the matter of America interest that Smith wants to protect through SOPA. Concerning wikipedia's SOPA criticism he says:
„The law does not intend to censure the internet. But it will protect American workers, inventors and job creators from thieves from abroad stealing our products, technologies and intellectual property.“
That's a very honourable intention. And the industries that are presented for examples are involved in medical supplies, food and of cause those fields where huge amounts of jobs are at stake. It's exactly like it is in Germany where the closing argument is: jobs will be lost.

StreikaufrufNo one should lose his livelihood through the existing anarchy of the internet (and the copyright infringements it enables on a daily base). Nobody should die because a pharmaceutical enterprise cannot keep track of an important medicine.
Theft remains theft regardless of involving intellectual or virtual property. And whether I copy articles from a journalist without crediting him or whether I download stuff illegally from a filesharing service … there's no reason to debate whether this equals theft and if so, what part of the process performs the deed. Or is there?
So far Smith is right, no doubt about it. But from here, every sentence that follows throws me further into doubt. While searching for information about all this the question posed itself to me: who are the interested parties from the industry who really (REALLY!) are pursuing this proposal and pushing it?

Author David Gerrold wrote on this5:
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SOPA is meant to accomplish the following: Currently there are laws in the U.S. protecting the rights of American innovators by prohibiting illegal sales and distributions of their products through U.S. Websites. But for the time being the legal situation does not cover a similar treatment of international websites. So online crime is rampant.
SOPA intends to prevent this. Not only shall U.S. customers be protected from illegal sales abroad and online crime, the same protection shall be gained for U.S. companies.

Back to the question: who has initiated this proposal? Looking for an answer you pretty fast hit on „List 301“, a paper compiled by the U.S. Government's Trade Representative. This paper lists countries that are not striving hard enough to protect intellectual property according to the U.S. point of view6.

Author Scott Perkins wrote8:
Our lives are a collage of shared experiences, a patchwork of the culture that unites us. Our conversations are peppered with movie quotes, our events are back-dropped by the songs playing on the radio or piped through restaurants and coffee shop speakers.
Yet if we try to reflect that part of our lived online, we are "pirates".
SOPA is unnecessarily broad. It breaks the relationship between the providers of service and the users of the services. It puts the onus on the owner of the house for all that happens within. All in the interest of taming the net, in the interest of forcing it to fit a business model that was created before the computer was invented. Rather than evolve to meet the new model, certain powerful elements of our society are seeking to force the rest of us to backtrack to meet them.
And it's not necessary.
I am a huge fan of copyright. The creation of copyright laws fundamentally changed the lives of creative individuals everywhere. They changed the world from a place where Charles Dickens was the most popular author in America, but never saw a dime of revenue from the US printings of his stories, to a world where authors, artists, and inventors could benefit from their own creations and use those revenues to devote their time to creating more.
But those laws were intended to also champion innovations and advancements that built upon a previous work to create something new. SOPA and similar laws stifle that, and many creative ideas and advancements are smothered in their cradle.
If the world had been a place where riffing on existing music was illegal, we would not have jazz. If variations on a theme were illegal we would not have a great deal of classical or modern music. Likewise, if the world had been a place where cracking open your car and tinkering with the engines was illegal, we'd still be driving the Model T and auto racing would not exist.
As a copyright holder, I understand the frustration felt by other copyright holders and I understand the kneejerk lashing-out that can ensue. Likewise do I like to think that there's room for reasoned response and discourse. There has to be a middle ground where the artforms can prosper, the citizens of the world can incorporate their culture into their lives (and thereby spread by word-of-mouth how great your material is) and do it all without throwing open the gates and making it so that artists simply cannot support themselves by their efforts.
Censorship is never the answer and therefore, SOPA cannot be.
Das Logo der IIPAAnd via this report of List 301 you encounter a recurring term that is most interesting in its vagueness: „interested others“. These „others“ are nobody else but the International Intellectual Property Alliance (IIPA)7. Founded in 1984 it is a conglomerate of the U.S. Entertainment industry's Big Players. The IIPA's website states it pretty clear that it is all concerned about pursuing the commercial interests of these companies. Protection of (their!) products that have been copyrighted as goods and products shall be secured through bilateral and multilateral initiatives. More than 1900 U.S. Enterprises are represented by the seven associations that are active in the IIPA.
This covers the fields of software (business and entertainment software), movies and music, books, journals and magazins … the associations of the entertainment industry that Sony, Warner or Universal are mebers of. Precisely they are:
  • Association of American Publishers (AAP)
  • Business Software Alliance (BSA)
  • The Entertainment Software Association (ESA)
  • The Independent Film & Television Alliance (IFTA)
  • The Motion Picture Association of America (MPAA)
  • National Music Publishers’ Association (NMPA)
  • Recording Industry Association of America (RIAA)
These are the „interested parties“ highly involved in the SOPA proposal.

Die Autorin Jaqueline Lichtenberg says10:
The USA has fine copyright, trademark, and patent laws, but the Internet/Web has blindsided legislators. We don't (yet) have a way to enforce intellectual property laws that is up to the 21st Century challenge and that also preserves our necessary individual and business liberties which make it worthwhile to own intellectual property. The roaring argument you are hearing raging around the world is about how to craft such a touchy and difficult law.
On a U.S. Forum I chanced upon a discussion thread where one user was asking about the other users' position on the illegal acquisition of software, media of entertainment et cetera. Answers ranged from „What a **** question“ or „You're here too so what's your problem?“ to „I'm just doing what everybody else does“ to detailed discussion and attempts to adress the question.
What positions are possible? How does one define a copyright infringement? Is it acceptable to hurt a company like Microsoft by drawing an Office copy? How much damage does a company selling high class games take if I download a copy of their latest hit? Am I only required to worry if I deny her share to an aspiring German author because I don't buy her book, stealing it instead as a PDF file?
Is it not a theft if I produce a copy – „from a friend, to a friend“ - to show my friend just how exciting that new CD is? This is exactly the reason many filesharing services give for their continued existence.
Fan fiction is another issue frequently critizised. Stories and entire worlds are protected by copyrights. In the wink of an eye you can find yourself on the illegal side of life. There's a good reason why many magazins stay clear of fan fiction on principle. Ourselves we don't often publish fan fiction, ask for permission in the few cases we do and make a statement about it in our FAQ for more tha a year. We only publish fan fiction if it is permitted by the holder of the copyright. That's why we have so few of it. And yes, when it comes to questions of copyright we're dancing on a wire with bare feet. But anything else than the highest protection of copyrights feasible is out of the question. Simply stating that „it couldn't happen to us“ is insufficient – five years of experience have taught us that much.

Autor James Owen wrote
I think that vigilance is essential, especially in industries where piracy of intellectual material is widespread. But adopting poorly-worded legislation, with lots of loopholes for abuses to occur, to try to control it isn't the answer. It reminds me too much of a policy the Kinko's copy chain used to have. I used to go make photocopies of my Starchild comic book pages at a Kinko's, until a manager told me they had a policy that no copyrighted material could be photocopied - and he demanded proof that I had the owner's permission to photocopy pages I had drawn myself. It was a huge waste of time, energy, and money just to try to prove I actually owned something I had created - and the current possibility of these stupid bills being made into laws generates the same feelings of frustration.
SOPA currently faces an increasing opposition. Its opponents have entered the field of play, and even U.S. Websites are sounding the alarm bells. I do advocate copyrights, but SOPA causes me to reconsider.

I'm a suspect the very moment I put something into the net that is accessible for a US citizen. Which is all the time, basically. Anything I present must either be backed by written permissions or must consist entirely of my own creations. That's pretty basic. I can't use Google, no Wikipedia, no Facebook. No Twitter, no – no nothing that might in any way use or link to stuff that could even just look suspicious to use content that is illegal in SOPA's book. I can't, even if I give my best shot at quoting and referencing sources.

It would be desirable for SOPA not to be empowered. Even the aforementioned Mr. Smith recently has announced that the planned mechanisms to filter the DNS that makes websites available the simple way we know will no longer be demanded by him.
But even if Congress comes to the decision not to act on that proposal I'm sorry to disappoint anyone interested in the issue – the next fly swatter already lies on the table: PIPA.

"Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011" or "PROTECT IP Act of 2011". This proposal is on its way through the Senate, the second House of Congress. The vote is scheduled as early as January 24th.
PIPA, too, taregts the DNS to block access to websites or restrict their availability. Exactly what this means and how it is supposed to work would lead us too far away. Basically, the DNS (Domain Name Server) permits to reach a website by entering a simple name instead of having to enter the IP adress.
But there's still hope. In the U.S., laws must be signed by the president. And there are plenty of rumors and reports circling through the web that Obama will veto this law. Murdoch already accuses Obama of holding sympathies for software pirates . One of Obama's advisors stated that the development of ideas requires a free web. Let's hope for it. His advisors explain the current position of the Obama administration on the topic as of January 19th, 2012.

In essence it's completely irrelevant whether SOPA or PIPA get implemented – both can result in pretty much the same outcome, and both are pushed by the same interested parties.

Clay Shirky of gives an excellent youtube presentation on what PIPA and SOPA are all about: money. Money for the companies and associations that feel their ship is sinking because of people sharing contents on the web, processing them into something new and distributing them.

And the real threat is the internet society already mentioned, that amorphous crowd that grows ever less controlable and gains ever more power, the power of the many. Let's hope they don't turn out to be lemmings.

It's not at all about protecting people or human lives and only in a very limited sense about jobs. It's all about abolishing the distinction between legal and illegal distribution of coprighted material.
Right  now the industry has to deliver the evidence and spend time and money on it. If SOPA or PIPA get turned into law, each of us is a potential fraud suspect.

(By the way … just how many computers in your family run that one legal copy of the current MS Office? Two? Three? Watch it – that's illegal. You just became a copyright offender.)

Quotes and sources:

1/3/5/8/9/10 Janet Morris, Jay Lake, David Gerrold, Scott Perkins, Jaqueline Lichtberg via facebook

Translation by Harald Weber

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