The Stop Online Piracy Act (SOPA)

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Tomorrow, a number of very high profile websites will go dark in protest of the proposed U.S. Stop Online Piracy Act. Though the White House has since made it clear that the President will not support the bill, the fact that it was proposed at all is an indicator of the threat the Internet faces. And, according to this post from Michele Neylon, SOPA may not be quite dead yet.

The bill builds on existing U.S. legislation like the Digital Millennium Copyright Act and international agreements like the Anti-Counterfeiting and Trade Agreement to protect online copyright and prevent counterfeiting.

Though it is American legislation, it could have a tremendous impact on global Internet users. It would require U.S. Internet Service Providers (ISPs), search engines, ad networks, and payment providers to withhold services to websites deemed by a court to be infringing copyrights held by U.S. content producers. If a Canadian website is found to infringe on copyright, U.S. search engines may be required to stop indexing the site in their results. If the site is hosted by an American ISP, it could be shut down. A Canadian online business could find itself without a system to collect payments if a U.S. online payment provider is required to not do business with them.

Many of you will remember The Helms-Burton Act, which extended the U.S. embargo of Cuba to foreign companies trading with that nation. Like SOPA, it shows just how far the tentacles of U.S. law can reach into other nations.  And while the Act can only directly affect U.S. service providers, many of the major service providers are American or have significant U.S. connections.

Fact is, if SOPA were to pass, it would mark the end of the free and open Internet we have been enjoying for the past couple of decades. The Internet’s free and open nature has given rise to the creativity and innovation that has enabled it to be the most incredible economic and social driver the world has seen since the industrial revolution. Yes, online piracy is a problem and it is something governments are going to have to deal with. However, draconian measures like SOPA/PIPA that would put limits on the Internet’s free and open nature are a bit like dropping a nuke to kill a cockroach – it might work, but is it worth the collateral damage?

In November 2010, a number of websites were shut down in a crackdown on copyright infringement and counterfeiting, including many that were not based in the U.S. but were operating on a U.S.-based top-level domain (like .COM). A number of the sites’ owners claimed they were  innocent and there was no proof they were engaged in copyright infringement or counterfeiting. SOPA would allow American authorities to cast their net even wider and take down or otherwise impact the free operation of websites that do not have U.S.-based top-level domains, but rely on other U.S. service providers. Clearly, the opportunity for rights to be breached is endless.

There is an irony in the development of SOPA. Paul Vixie has a great explanation of this here. For a few years now, engineers and others have been working to make the DNS more secure. When implemented, DNSSEC will add an additional – and needed – layer of security to the DNS. SOPA would require American ISPs to block DNS resolution and redirect traffic for websites infringing on copyright. Redirection of traffic to these domain names would be detected as a malicious attack once DNSSEC is implemented. Other proposals under SOPA would be equally as ineffective, according to Vixie. While trying to make the Internet a more lawful place, SOPA’s designers have inadvertently found ways to do the opposite.

We are not immune to the copyright debate in Canada.  Bill C-11 (also known as the Copyright Modernization Act) is currently tabled in Parliament.  It attempts to coordinate Canada’s copyright laws with internationally recognized norms, and includes several elements that may improve Canada’s record of being a safe haven for digital piracy.  These include a “notice-and-notice” regime, which requires ISPs to forward notices from copyright owners to suspected infringing subscribers.  It also contains protections for technological protection measures (also known as digital locks), and distinguishes between commercial and non-commercial infringement for the purposes of enforcement.  However, it does not introduce any elements of undermining the basic infrastructure of the Internet to accomplish copyright protection goals.  It seems the Canadian government is still searching to find the right balance between intellectual property consumers and producers (after considerable pressure from the likes of Michael Geist), but all indications at this point seem to show that C-11 won’t contain measures as draconian as SOPA.

While a number of entities seek to put limits and regulations on the Internet, I believe these actions are misguided. Regulating online content (copyrighted material) by legislating the medium (the Internet) misses the point. You only succeed in blocking a path to that activity, like closing a road because there’s a store selling pirated music on it. While you may slow traffic to the store, you haven’t done anything to stop the illegal activity. Anyway, there are a lot of smart folks on the Internet, and they will always find workaround and gain access to what they are looking for. In fact, SOPA has not even passed and there is already a workaround.

This gives rise to the question: how can we strike the balance between protecting copyright and preventing counterfeiting while maintaining a free and open Internet?

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