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Please begin with an informative title:

Good luck finding a layman's explanation of what SOPA and PIPA actually do and how they do it. (You may not find it here either, but I'll take a stab at it.)

Earlier this week, even the redoubtable Rachel Maddow copped out of describing these two bills on the grounds they were too complex. So Rachel and the MSM relegated themselves to covering the phenomenon of the net going dark, who was for and against the legislation and how some sponsors were pulling back, all much easier to describe than how the bills actually work. For different reasons, the same can be said of legislators, many of whom - with the prominent exception of feisty Senator Ron Wyden (D-OR) - seemed to swallow hook, line and sinker what they heard from content industry lobbyists without delving into details.

So, what is it all about? Will access to information no longer be as free as it has been?


You must enter an Intro for your Diary Entry between 300 and 1150 characters long (that's approximately 50-175 words without any html or formatting markup).

At the water line, the icebergs that are SOPA and PIPA enforce economic and artistic intellectual property interests of the producers of creative content.

Lobbyists for music, recording, TV and movie industry associations told Congress that the fruits of their work were being stolen or counterfeited. They said the perps were foreigners, ominously labeling them "US-directed". (After all, this is the entertainment industry talkin'.) They said these villains were accomplishing their piracies online by using the internet to distribute the results of their thievery and to get paid for it. Such piracy is hard to police, they argued, because the guilty foreigners were elusive, difficult to identify, practically impossible to stop under existing law. What should be done? The creative industries urged Congress to deny the offenders online access, thereby closing legitimate online conduits to illegal enterprises.

Accepting for argument that large scale theft is taking place via the internet, the case for action appears straightforward. But as legislative arcana often goes, the devil is in the details below the waterline.

The brouhaha - the sudden collision of well-heeled lobbyists accustomed to having their way vs. a massive self-imposed boycott of some of our favorite internet sites - is over remedies. And even though these bills are being held back because of the public uproar, they ain't dead yet.

At their core, SOPA (the Stop Online Piracy Act, H.R. 3261) and PIPA ("Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011" aka the Protect IP Act or PIPA, S. 968) conscript those who provide internet services into enforcing the demands of copyright owners.

How so? For starters - like those pesky labels at the beginning of DVDs that you can't fast forward past (a result of earlier heavy entertainment industry lobbying) - the legislation empowers the US Attorney General to chase down internet sites that are committing or facilitating online trafficking in sound and video recordings and counterfeit labels, goods and services. (SOPA included, fetchingly, pharmaceuticals, a provision that might have gained a bill sponsor or two or maybe added a cadre of sympathetic lobbyists?) Empowering the AG thereby triggers the resources of the Justice Department, thereby enlisting the FBI.

Arguably, if that was all SOPA and PIPA would do, the issue could be reduced to whether chasing down and prosecuting IP theft is a justifiable use of scarce public resources at a time when many members of Congress say they are far more concerned about reducing Federal spending and cutting back on government. But No, these bills go much further.

They set forth a process whereby copyright owners declare what constitutes a violation of their copyright, how it may be occurring and who is implicated (as best they can tell) and what must be done about it, all within the patina of due-process. (Caveat. The bills vary considerably in detail. The following descriptions are based largely on summaries in the Library of Congress's online Thomas site. These are not legal advice, nor intended to be anything other than a general summary. I welcome suggestions for improving their accuracy.)

Under SOPA, a copyright owner can send notices specifying violations to internet sites it believes are being used to advertise, sell and distribute stolen content - that is, to sites like PayPal payment processing, search engines like Google, internet ad services, hosts who have content or republish it and domain administrators - who are innocent of the theft but somehow involved in the fencing of it, so to speak. The bills require these sites to pass along the notices to the alleged copyright infringer. Unless the accused infringer responds satisfactorily within a handful of days that it is not involved in any such wrongdoing, the rights owner can then go to a courthouse for an injunction against everyone involved in providing any kind of services that facilitate the alleged violations.

Procedures under PIPA focus on domain names and administration, apparently aimed situations where parties behind the domain name curtain can't be identified.

Most significantly, the bills require innocent conduits to carry out preventive measures. Perhaps from lessons learned in Patriot Act litigation, the bills grant immunity to the innocents who it requires to take action, protecting them against liability even in cases where the copyright owner might ultimately be proved to be wrong.

Bottom line: Sites can summarily be blocked from the internet based on the Say So of members of the music, recording, TV and movie industries.

The concept is that litigation in US courts assures due process of law. But if the targets of the notices are offshore, there may be little if any response to the notices and vigorous defense is less likely. The remedy chops off internet access to alleged offending sites and forecloses others from enabling the perps or profiting from carrying signals or providing services to them.

As The New York Times opined in "Online Piracy and Political Overreach":

"The Internet industry ... has made a good case that some of the definitions of wrongdoing — like 'facilitating' intellectual property infringement — were overly broad. They said allowing property rights owners to direct payment companies like Visa and ad networks like Google’s to stop doing business with sites they deemed infringing — with no penalties if they were proved wrong— could stymie legitimate online expression.

They made the case that the proposal to make infringing Web sites 'disappear' from the Internet by forbidding search engines from finding them or redirecting their Web addresses to other Internet domains was easy to get around and could potentially undermine efforts to stop hackers from doing exactly the same thing."

Some tech industry opponents went further, arguing that these bills would undermine the fundamental structure of the internet and "decimate the open source software community." See the Electronic Frontier Foundation's white papers - online, of course.

So the bundle of industries who provide various services on the internet and act in their own economic interests marshaled the most formidable resource they had, their customer base, by taking some sites down for a day and posting shock-and-awe warnings on others. Practically overnight, the issue became converted from stopping thievery to restricting the free flow of information over the world's most awesome information channel.

Talk about the power of lobbying! Lobbying which is proving to quite effective. Sponsors are dropping off both bills and opponents are becoming vocal. Speaker John Boehner (R-OH) concluded the House bill will have to be reworked: "... it’s pretty clear to many of us that there’s a lack of consensus at this point." Rep. Lamar Smith (R-TX), lead House sponsor of SOPA and Chairman of House Judiciary with jurisdiction over his bill, announced he was indefinitely postponing marking it up! In the Senate, there were enough opponents of PIPA that Majority Leader Harry Reid (D-NV) announced he would be postponing the vote he had scheduled for next Tuesday. Even the remaining four GOP presidential candidates came out against these bills!

My personal view is that many members of Congress were perfectly comfortable placing themselves in the hands of the glitzy entertainment industry and their Washington reps. The legislators and their staffs failed or refused to focus on how draconian these bills were for policing intellectual property abuses. And many of us, reacting to apocalyptic claims from objectors to the bills, suddenly got activated into energetic lobbying of our own, perhaps without asking any penetrating questions of either side.

Big business interests are at stake. Fortunes can be made or destroyed and opportunities for mischief abound. The issues cross political lines and industry lines. Writers of software code and video game producers, for example, might be on both sides of legislation like these bills. Judgments about what use of ILP is legit and what isn't would be in the hands of one very interested party empowered to conscript a posse that must do as it is told. How much content would be forced to come off YouTube? Perhaps in a more perfect world, claims for copyright protection would be clear. Content is copyrighted or it isn't. Using it without royalties is theft or not. Intellectual property, however, does not exist in a perfect world.

Hollywood has already gone pretty far being a role model for copyright enforcement. For example, most recognizable art cannot be placed on the walls of offices used in movies and TV shows for fear of committing a copyright violation. Think about that!

The copyright vigilantes have been practicing.

Extended (Optional)

Originally posted to TRPChicago on Fri Jan 20, 2012 at 12:19 PM PST.

Also republished by Discussing The Law: TalkLeft's View On Law and Politics.


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