SOPA PIPA Dj vu all Over Again vs

SOPA & PIPA: Déjà vu all Over Again vs. Gigi B. Sohn, President & CEO, Public Knowledge

2001: Security Systems Standards and Certification Act 2002: Consumer Broadband Digital Television Promotion A 2001: Made general purpose computers & software illegal by mandating low-level DRM All online services have to respect and pass on DRM— this could have outlawed most user-generated content sites & web hosting 2002, same as 2001 but adds: Detailed pro-content industry Congressional findings Sen. Hollings Gave the Federal Communications Commission (!) authority over content protection technologies—to carry out this bill requires extensive government control over media distribution technologies broadcast flag

Reactions to Hollings Bill “This is an exceedingly moderate and reasonable approach. . . This bill is going to speed the entertainment content into the online broadband environment, create consumer demand get broadband going. ” Preston Padden “Dead on arrival in Judiciary. ” Darrell Issa

2002: HR 5211, Limitation on Liability for Protection of Copyrighted Works on Peer-To-Peer Networks legalizes black-hat hacking, malware, and viruses expressly permits content industry to intrude on and damage user computers allows destruction of user data, even when it does not infringe copyright broad immunity from other laws that might be violated Rep. Berman

Anticounterfeiting Amendments of 2002 Makes it a crime to traffic in “counterfeit labels, illicit authentication features…counterfeit documentation and packaging” Gives copyright holders a private right of action if they are “injured” by the violation of this law Sen. Biden

2004: Intellectual Property Protection Act (originally the PIRATE Act) Gets rid of “willfulness” requirement for some infringement penalties AG as private attorney Makes camcording a federal crime Makes fast-forwarding commercials illegal (by “codifying” already-existing right to fast-forward, which either does not implicate a 106 right or is a fair use, and conditioning it on not skipping commercials) Various penalty/enforcement/registration changes Sen. Hatch Orphan works! This mostly came back in 2006, but without orphan works or outlawing commercial-skipping

2004: INDUCE Act Makes “intentionally inducing” copyright infringement a crime. “intentionally induces” means intentionally aids, abets, induces, counsels, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability. Sen. Hatch “Nothing in this section shall enlarge or diminish the doctrines of vicarious or contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright infringement. ”

2005: Digital Transition Content Security Act Plugs the “analog hole” Micro-manages the technology that both content and CE industries may use (CGMSA+VEIL) Reps. Sensenbrenner and Conyers

2005: Family Entertainment and Copyright Act Made camcording a felony New penalties for distributing prerelease works Permitted technology to play DVDs without adult content (Clearplay) Sen. Hatch Signed April 27, 2005

2006: Audio Broadcast Flag Licensing Act Broadcast flag plus DRM for terrestrial and satellite digital radio Puts the FCC in charge of picking content protection technologies Rep. Ferguson

2008: PRO-IP Act Created Intellectual Property Enforcement Coordinator (IPEC) Enhanced forfeiture provisions led to today’s domain name seizures (few if any foresaw use of forfeiture in this fashion—the concern was physical property) Provisions that were stripped: • AG becomes private attorney for copyright plaintiffs • increased penalties for DRM circumvention • One CD = 10 works for penalties • No need to register prior to criminal prosecution Signed into law October 13, 2008 Rep. Conyers

And Let’s Not Forget • • FCC’s Broadcast Flag Rules (struck down in ALA v. FCC) FCC Grant of Selectable Output Control Waiver to MPAA for “high value” content “Three Strikes” Proposals Proposed language in 2009 stimulus bill, NTIA BTOP rules and FCC net neutrality rules that would grant immunity from net neutrality rules for ISPs that block allegedly infringing content.

Roots of SOPA & PIPA • • • Immunity from other laws/regulations Private right of action granted to copyright holders Lowering standards for secondary liability Reversing DMCA Sec. 512: intermediaries as copyright cops Increasing forfeiture, enforcement, police powers Increasing politicization of law enforcement

I've long believed that piracy is largely a business model problem not a human behavior problem. If you give people a legal way to consume the content they want, they will pay for it. But when you make it impossible to legally consume the content they want, they will pirate it. Fred Wilson, Union Square Ventures January 3, 2012

Concern/Opposition To SOPA/PIPA (Partial List) Source: Center for Democracy & Technology http: //bit. ly/v. I 8 Ovv Large Companies Online Services & Websites Facebook Twitter e. Bay American Express Mozilla Zynga Google Wikipedia Small Companies Kickstarter Open. DNS Namecheap Quora Hype Machine Buzz. Feed deviant. ART Grooveshark Webs, Inc. Scribd Meta. Filter Disqus Etsy Public Interest and Non-Profit Public Knowledge American Civil Liberties Union Brookings Institute Cato Institute Move. On. org Democracy for America Demand Progress Fight for the Future Freedom. Works Tea Party Patriots Heritage Foundation Campaign For Liberty Free Press American Society of News Editors Internet Archive Tech. Freedom Electronic Frontier Foundation Center for Democracy and Technology Human Rights Organizations Human Rights Watch Amnesty International Center for Media Justice Reporters Without Borders WITNESS Industry Groups and Unions Business Software Alliance Computer & Communications Industry Association Consumer Electronics Association Graphic Artists Guild Writers Guild of America West Venture Capitalists Foundry Group Union Square Ventures Y Combinator SV Angel Marc Andreesen and Ben Horowitz, Andreessen Horowitz OATV David Frankel and Eric Paley, Managing Partners, Founder Collective Artists Future of Music Coalition Aziz Ansari Big Boi Neil Gaiman The Lonely Island Jason Mraz OK Go! Amanda Palmer Peter Gabriel Trent Reznor Adam Savage (Mythbusters) Olivia Wilde Over 100 Law Professors Over 140 Technologists

Visualizing SOPA on Twitter

Neither SOPA, [nor] PIPA…. is a viable answer. We need to take a step back to seek fresh ideas and new approaches. Cary Sherman, New York Times February 7, 2012

Thanks!