Search results for "sopa"

What the Hell Happened? The Campaign Against (and Defeat of) SOPA

I trust that most of you remember the rather astonishing events of late 2011/early 2012, during which something resembling an Internet insurrection helped stop the Administration’s proposed “Stop Online Piracy Act” (SOPA) dead in its legislative tracks.  [I was pretty actively involved in the efforts, and blogged about the events on a number of occasions – herehere, here, …]

A few months later, after the dust had settled a bit, I began a talk about the death of SOPA with:  “What the hell happened?”  It sure felt like a tidal wave of opposition to the bill — it certainly felt that way to the politicians in the White House and Congress, who couldn’t disavow their prior support for the bill fast enough, once the heat was turned up (to mix my metaphors).  Where did it come from, and what did it mean?

Yochai Benkler and colleagues at the Berkman Center (Hal Roberts, Robert Faris, Alicia Solow-Neiderman, and Bruce Etling) have published a rather remarkable study that sheds some really interesting light on those questions.  It’s a study of the public debate on the Net leading up to the “mass mobilization” against the bill, using, in the authors’ words, “a new set of online research tools . . . combining text and link analysis with human coding and informal interviews to map the controversy over the relevant 17 months” to analyze “the shape of the networked public sphere engaged in this issue.”  It’s a fascinating picture — actually, a series of pictures, chronologically organized, showing the development of the controversy as websites moved in, or out, of the central focus of discussion.

The data suggest that, at least in this case, the networked public sphere enabled a dynamic and diverse discourse that involved both individual and

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More “For the Moment Final”** Thoughts on SOPA

[** from Wallace Stevens, NY Law School Class of ’03, The Man With the Blue Guitar — though the original reads “for a moment final”, a nice example of how much meaning can change when substituting the definite for the indefinite article]

The folks over at Justia’s Verdict asked me to give them a piece summarizing the whole SOPA debate and for some reflections of a “now that the dust has settled a bit, what was that all about?” variety.  So I did.  The original is published here:  By virtue of Justia’s rather enlightened publication agreement, I can reprint/republish/reuse my piece to my heart’s content, provided I acknowledge and link to their initial posting – which I’ve done.  So here it is.  Those of you who have read my earlier postings on the subject will see familiar things in here – but I think I keep finding more reasons to be alarmed by what the Congress was about to do, and that they speak to some very large issues in connection with our ability, going forward, to bring “law” to the Net.
SOPA and the Future of Internet Governance

So what was all that fuss about?   SOPA, PIPA, Internet Blackout Day, front page stories in newspapers all across the country, 8 million or so emails pouring into the White House, 2 million #sopa tweets, 10 million signatures added to online petitions opposing the bills, . . . followed, of course, by the announcement that these various legislative proposals for combating online infringement1 had been taken off the table “for further study.”

1.  Although SOPA (the “Stop Online Piracy Act”) was only one of the bills advancing through Congress to deal with online infringement – others include PIPA (“Protect IP Act”), COICA (“Combating Online Infringement and Counterfeits Act”), and

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Is GOP a SOPA “Nope” Hope?

Here’s a revised version of an op-ed I published on the potential importance of the SOPA fight.  The original appeared in Hollywood Reporter (caution: paywall; free version is here)

What went wrong for SOPA, the entertainment industry’s proposal for stopping international piracy? And what does it mean for Hollywood’s future clout in Washington?

I had a ringside seat for the battle over SOPA, though not as a supporter.  I thought it would make Internet users more vulnerable to cybercrime. That was a problem that could have been fixed.  Instead, after a brief halt and some modest changes, the entertainment industry decided to press for a showdown.

And a showdown, of course, is what it got.

Why did it turn out so badly? The entertainment industry’s first mistake, then and now, is believing that its adversary is a group of other companies — Google, Internet service providers, and others — who are somehow hoping to profit from the Internet travails of the entertainment industry.

In fact, the industry is fighting what amounts to a new popular culture.

Unlike the old pop culture, this one is largely independent of the music, movie, and broadcast industries. In fact, people who spend hours on line instead of watching TV or going to movies will probably encounter the entertainment industry only when Youtube videos of their kids dancing to Prince or spoofing Star Wars are pulled down by Hollywood’s bots, or when the RIAA threatens to sue them for their college savings, or when digital rights software makes it hard to move their stuff to a new tablet or phone.

To the entertainment industry these episodes may seem like collateral damage in the fight to stop piracy.  To the new pop culture, though, collateral damage and misuse of enforcement tools is everywhere, and it

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SOPA Debate on Tuesday

For those of you who might be in and around Philadelphia this coming Tuesday (Jan. 31), I’ll be debating with Justin Hughes of Cardozo Law School at a Temple Law School Federalist Society event about the recently introduced (and even-more-recently withdrawn) copyright legislation (SOPA and PIPA). More details about the event can be found here and here. It should be an interesting event; Justin and I have very, very different views about these bills — he was a consultant, I believe, to the House Committee that drew them up, and I think they’re the Devil’s handiwork — and I think there will be both heat and light shed on the issues (both of which are required of a good debate). Plus, I think this is an issue that cuts through a very interesting line through what might roughly be called the political “right” — between the property rights conservatives and the free-speech libertarians — so there are interesting meta-issues on display. We’re expecting a good crowd — there’s nothing like a day-long Wikipedia blackout to get folks interested in online copyright matters — and it should be a lively affair. [...]

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Testifying Against SOPA

I will be testifying next Wednesday against SOPA, reprising my concerns about its impact on implementation of new web security protocols.  I’ve blogged those concerns here and here. The hearings are being held by Darrell Issa (R-CA), chair of the House Oversight and Government Reform Committee, who is troubled by the Judiciary Committee’s determination to take SOPA to the floor without hearing from witnesses on this issue. More details here. [...]

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Critics of the Stop Online Piracy Act (H.R. 3261) have had an impact.  A manager’s amendment has been offered by Lamar Smith, R-TX, the Judiciary Committee chairman.  I was critical of the first version.  Here’s my take on the new version.

This version contains several provisions aimed at the security concerns raised about the first version.  The new bill insists that it is imposing no technology mandate and that it should not be construed to impair the security of the domain name system or the network of an ISP that receives an order. And it whittles away at the original requirement that ISPs must “block and redirect” visitors to pirate sites. Now, the ISPs are only obliged to block those efforts, not to redirect the subscribers to an alternative site that warns against piracy. ISPs also get a safe harbor that allows them some assurance that they don’t have to redesign their networks to carry out the blocking.

Unfortunately, the new version would still do great damage to Internet security, mainly by putting obstacles in the way of DNSSEC, a protocol designed to limit certain kinds of Internet crime. Today, it’s not uncommon for crooks to take over Internet connections in hotels, coffee shops and airports — and then to direct users to fake websites.  Users sent to a fake banking site are prompted to enter account and password data, which is used to loot the account. DNSSEC prevents such attacks by giving each website a signed credential that must be shown to the browser by the domain name system server before the connection can be completed.

That’s a great idea, but crooks will predictably try to override it.  Their best bet is to claim that the website doesn’t have a signed credential – a claim that will be plausible [...]

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Still More on Justice Scalia’s Footnote

Eugene has a somewhat different take on Justice Scalia’s now-infamous footnote than I did . . . He writes

[M]y sense is that the footnote is just a somewhat indirect way to remind lawyers of a useful rule of brief writing — always decode any abbreviations that you use.

Of course, as David points out, it’s not hard for readers to figure out what most abbreviations stand for, with just a bit of research, and the name of the association isn’t that critical in this case in any event. But I take Justice Scalia’s point to be that lawyers shouldn’t put judges to the trouble of doing that research. If you use an abbreviation that your reader is unlikely to know, or for that matter any specialized term that your reader is unlikely to know, make it easy on the reader: define it up front. And don’t just assume that the definition doesn’t matter; the reader of your brief might not share your view. In this case, for instance, a reader might think that understanding what the organization calls itself (especially when it’s a young organization, whose original full name isn’t shrouded in the mists of antiquity) might give him a better picture of the case, and might be annoyed that no decoding was given.

Well, I certainly agree with that “useful rule” — always decode abbreviations just in case you’re reader doesn’t know them.  If you’re talking about the DMCA, or ISPs, or SOPA, or the VAT, or NSAID drugs, or the POSITA, or . . . tell the reader what you mean.

But I do think that an abbreviation in a party’s name calls for relaxing that rule – unless for some reason it actually matters for the case.  WRKO, Inc. v. FCC — would we expect the [...]

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George Gershwin, CISPA, and the President’s Veto Threat

This White House sure knows how to snatch defeat from the jaws of victory.

The President’s threat to veto CISPA (Download Cyber – S A P ) will likely kill cybersecurity legislation for the year.

Here’s the sentence that I believe will eat away at support for the legislation among its last defenders in Silicon Valley:  “The Administration … remains concerned that the bill does not require private entities to take reasonable steps to remove irrelevant personal information when sending cybersecurity data to the government or other private sector entities.”

Those last four words signal a big change in the status quo.  Most companies today can share information voluntarily with the government without legal constraint, though electronic service providers must demand a subpoena before sharing information. And practically all companies, including electronic service providers, may share cybersecurity information with other private companies without worrying that the government is looking over their shoulders.

So in demanding that CISPA limit sharing with “other private sector entities,” the Administration is proposing a sweeping new regulatory scheme for the private sector. The scheme will actually impair cybersecurity by restricting the information-sharing companies now conduct to protect their networks.

And while the Statement of Administration Position tries to make the new regulatory scheme sound less harsh by claiming that it only requires “reasonable” steps to remove “irrelevant” private information, those words are code for “You’ll need a lawyer before you share any cybersecurity information with anyone.”  After all, reasonableness is a famously elastic concept in the law; you only really know whether your actions were reasonable five years after the fact, when the judge rules. 

And what is “irrelevant personal data” exactly?  Can an ISP identify the IP address of the computers sending DDOS packets toward a victim?  Much of the time an [...]

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Copyright Unbalanced

Back in November, I made mention of a new book from the Mercatus Center on the Great Copyright Debate(s) — Copyright Unbalanced:  From Incentive to Excess — in which I had contributed a chapter (on the SOPA debacle).  I’m told that today – the second  anniversary of the SOPA “Internet blackout” — the publishers are making the book available for free download here (scroll down to see the free download link).  Nice! Come and get it! [...]

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The Criminal Charges Against Aaron Swartz (Part 2: Prosecutorial Discretion)

This is the second in a series of posts on the Aaron Swartz prosecution. In my first post, I analyzed whether the charges that were brought against Swartz were justified as a matter of law. In this post, I consider whether the prosecutors in the case properly exercised their discretion. As some readers may know, prosecutors generally have the discretion to decline to prosecute a case; once they charge a case, they have the discretion to offer or not offer a plea deal; and once they offer the plea deal, they have some discretion to set the terms of the offer that they will accept. This post considers whether the prosecutors abused that discretion.

To provide some attempted answers, I’m going to break down the question into four different issues: First, was any criminal punishment appropriate in the case? Second, if so, how much criminal punishment was appropriate? Third, who is to blame if the punishment was excessive and the government’s tactics were overzealous? And fourth, does the Swartz case show the need to amend the Computer Fraud and Abuse Act, and if so, how?

This is a very long post, so here’s a summary of where I come out on these four questions.

On the first question, I think that some kind of criminal punishment was appropriate in this case. Swartz had announced his commitment to violating the law as a moral imperative in order to effectively nullify existing federal laws on access to information. When someone engages in civil disobedience and intentionally violates a criminal law to achieve such an anti-democratic policy goal through unlawful means — and when there are indications in both words and deeds that he will continue to do so — it is proper for the criminal law to impose a punishment under [...]

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More on the (Still Pending) “Anti-Internet Treaty”

Courtesy of Larry Downes and the (indispensable) document repository, some evidence that the UN is gearing up for a public relations push in support of what Downes is (rightly) calling the “Anti-Internet Treaty” — viz., various proposals on the table  at the upcoming World Conference on International Telecommunications which would give the UN’s  International Telecommunications Union jurisdiction over setting Internet standards.  This is starting to feel, to me, a lot like the SOPA debates felt, six months or so before the dam broke and all hell broke loose.

It’s really easy to make the case that the ITU has, and should continue to have, absolutely nothing to do with the rules and protocols for the global TCP/IP network (which grew to its current prominence, of course, precisely because the ITU and the UN had absolutely nothing to do with its development and deployment).  It’s a little more difficult to say exactly how the Internet should be “governed,” whether it needs to be ‘governed,’ what form that “governance” should take, and similar questions that are going to become increasingly important, I think, over the next decade or so.  If any of you happen to be in DC on Thursday, I’ll be speaking at a New America Foundation/Slate/ASU conference on Internet governance on Thursday morning, trying to figure out a way to think about some of these questions.


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Republicans Going Copyleft?!

The Republican Study Committee  in the House of Representatives has issued an extremely interesting (though rather clumsily written and clumsily titled) Report on “Three Myths About Copyright Law, and Where to Start to Fix it.”  The Report is posted here

Actually, it’s not posted there anymore, having been removed by the RSC itself  . . . But (thanks, Dr. Internet!) you can read it here.  Paul Teller, the Executive Director of the RSC, issued this statement explaining the removal:

We at the RSC take pride in providing informative analysis of major policy issues and pending legislation that accounts for the range of perspectives held by RSC Members and within the conservative community.  Yesterday you received a Policy Brief on copyright law that was published without adequate review within the RSC and failed to meet that standard.  Copyright reform would have far-reaching impacts, so it is incredibly important that it be approached with all facts and viewpoints in hand.  As the RSC’s Executive Director, I apologize and take full responsibility for this oversight.  Enjoy the rest of your weekend and a meaningful Thanksgiving holiday….

Paul S. Teller  — Executive Director, U.S. House Republican Study Committee

I have no grounds for believing that this was an RSC ploy to increase readership of the Report.  [Admit it – you’re more likely to read a Policy Brief on Copyright Law (yawn) if it was deemed too hot to handle by those who released it …]

I’m flagging this as an Important Moment for the Internet –  historians of the future, take note.   I’ve been waiting a long time for libertarians and conservatives to wake up to what a stinking mess our copyright law is at the moment – an anti-innovative, speech-abridging mess (for you “libertarians”), and a over-regulated-haven-for-rent-seeking (for the  “conservatives” among you).  [Admittedly, [...]

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Republicans Briefly Repudiate 40 Years of Tougher Copyright Laws

As the fight over SOPA wound down, I predicted that SOPA might be turn out to be a watershed, permanently turning Tea Party Republicans into copyright skeptics:

For Republicans, opposition to new intellectual property enforcement is starting to look like a political winner. It pleases conservative bloggers, appeals to young swing voters, stokes the culture wars and drives a wedge between two Democratic constituencies, Hollywood and Silicon Valley.

That prediction is starting to look pretty good.  The conservative-led Republican Study Committee just put out a Policy Brief that questions forty years of bipartisan support for tougher copyright enforcement.

Indeed, the Republican Study Committee expresses support for expanding fair use, treating the reduction of statutory copyright damages as a kind of tort reform, punishing false copyright enforcement claims, and limiting copyright terms to twelve years, with increasingly expensive extensions available for no more than 34 years.

It is the most radical proposal for overhauling copyright that we have seen in recent years — and the most head-turning change of direction in decades for either party on intellectual property issues.

UPDATE: That was fast. The policy brief has been withdrawn. The study committee’s executive director’s statement explained the withdrawal this way: “Yesterday you received a Policy Brief on copyright law that was published without adequate review within the RSC and failed to meet that standard. Copyright reform would have far-reaching impacts, so it is incredibly important that it be approached with all facts and viewpoints in hand.”  [...]

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Copyright v. Conservatives

Screen-shot-2012-07-16-at-6.40.03-PMConservatives have grown more skeptical of copyright maximalism since SOPA forced newly elected Republicans to choose sides in the copyright wars. And copyright owners aren’t doing much to win them back, judging by Bertelsmann’s latest ham-fisted foray into US politics.  The large German publisher, which owns BMG Rights Management, recently forced YouTube to take down Mitt Romney’s new campaign video because it included footage of President Obama singing Al Green’s “Let’s Stay Together.” The takedown is still in effect, even though the clip was almost certainly fair use; the President sang the song at a public event that was widely covered in the press and even on YouTube itself.

Embarrassingly for Bertelsmann, the company had never issued a takedown notice for the YouTube clips of the President singing the song, even though many of them were posted six months ago. When that imbalance was pointed out, Bertelsmann quickly issued takedown notices for the President’s performance as well.

Ironically, though, it still has not issued takedown notices for all the YouTube clips of Al Green himself performing  the same song. [...]

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Why we need to fix CISPA , not kill it

Security guru Dan Kaminsky and I joined earlier this year to fight SOPA because it was bad for cybersecurity.  Today, for the same reason, we joined in a Politico op-ed to rebut attacks on CISPA, the Cyber Intelligence Sharing and Protection Act:

We may have thrown some of the first stones, but SOPA was ultimately buried by an avalanche of criticism. Tumblr, Reddit and Wikipedia, among others, even protested by taking their sites down for a day. The effect was not subtle. SOPA is dead.

Here in the United States, though, the debate has taken an odd turn. After stopping a bill that would have undermined cybersecurity, some Internet activists are now targeting bills that could actually make the Internet safer. They’re charging that bills like the Cyber Intelligence Sharing and Protection Act represent stealth attempts to resurrect SOPA under the guise of promoting cybersecurity….

There are ways to address this concern, but we must remember the bigger privacy and civil liberties threat: the Internet’s insecurity….

Without security, no network offers privacy. A hacked database offers no protection.

Part of the solution is to get better at sharing information. That means sharing attack signatures at light speed so as soon as a new attack vector is identified by one company, it can be blocked by others. Government needs to be part of that system — it has a lot to defend and it’s pretty good at identifying signatures.

But under current law, once the government shows up to receive information, private-sector participation slows from the speed of light to the speed

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