It began: “The Senate Judiciary Committee is poised to consider a bill that, if enacted, will have dangerous consequences for free expression online and the integrity of the Internet’s domain name system.”
The drafting of that letter was organized by David Post, a law professor at Temple University. Before long, professors all over the country had joined on as signatories to the seven-page document. In the end, the bill was shelved—a victory for all those against increased government regulation of cyberspace.
It’s a nice story, but it’s old news. The professors’ letter was released back in November of 2010—before SOPA, before PIPA. The bill in question was called COICA, or the Combating Online Infringement and Counterfeits Act.
COICA, E-PARASITES, SOPA, PIPA, OPEN—from the alphabet soup, a clear trend is emerging. All of those bills address the problem of copyright infringements abroad, and all of them have faced criticism—some more publicly than others. “These bills have been kicking around in various forms under different names,” explained Post. “But the basic approach has been the same. It’s discouraging; their strategy is to just keep coming at you, again and again.” The opposition to SOPA and PIPA caused quite a stir—for Post, that was encouraging. “But the next time, it’s going to be hard to rile everybody up again.”
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The bills are meant to address a very real problem—when websites outside of the United States steal or illegally distribute copyrighted content, they are beyond the reach of U.S. enforcement agencies. This means that content creators have little recourse when foreign website owners resort to piracy. Mark Elliot, the executive vice president of the Global Intellectual Property Center for the U. S. Chamber of Commerce, wrote a letter to the New York Times last November in defense of SOPA and PIPA. “Protecting American innovation, jobs and consumers from foreign criminals is critical to a secure Internet and a prosperous future,” he said.
Elliot also explained that the “[p]roposed legislation authorizes a federal court to direct the suspension of services (payment processing, advertisements and linking) to rogue sites.” For many, therein lies the problem. By ordering the suspension of services that provide funding, hosting or other support, a federal court here could effectively shut down a foreign site without giving any notice beforehand. This apparent lack of due process was especially dangerous due to some vague language in both SOPA and PIPA that blurred the boundaries of liability.
But this was more than just a legal issue. Opponents warned that SOPA, PIPA and its predecessors all presented a fundamental threat to the very infrastructure of the worldwide web.
“Think about how the internet works,” said Post. “We sit at our desk and type in a URL, and half a second later we get back a file from the right machine, out of the 800 million machines on the internet. How did it get the right one? It’s hard to describe in a few sentences, but the service providers are all plugged into this very complicated set of interlocking databases that circulates around the world at every second, updated all the time. The whole system is based on the premise that all machines get the same databases. But with these bills, all the databases would start looking different because of the court orders pulling stuff out. The whole notion that there is one universal set of names is at risk.”
In other words, bills like SOPA and PIPA had real potential to ‘break’ the internet. “This is a single global network,” said Post. “To treat it as an extension of physical space, with borders around each country, is preposterous both technically and legally.”
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Although the shelving of SOPA and PIPA represented a small victory, online content owners remain vulnerable to foreign piracy. So, given the history of the constant reincarnation of this legislation, it comes as little surprise that a new attempt is already on the table. But on the face of it, this new bill is a little different.
It’s called the Online Protection and Enforcement of Digital Trade Act, or OPEN, and this one is not flying under the radar. In fact, a serious branding effort is underway—the bill has its own website at keepthewebopen.com, which is clearly designed to appeal to an internet-savvy audience. A hash tag features prominently on the front page banner. Buttons make it easy for visitors to ‘like,’ ‘tweet’ or link. The full bill itself is front and center, flanked by comment boards where visitors can suggest changes.
Though not perfect, experts agree that this bill makes more logistical sense than its predecessors. “The OPEN act takes its approach to the International Trade Commission,” explained Post. “I don’t know how I feel about that specifically, but I do think they’re asking the right questions. The right question is the institutional question: what are the institutions that can really cope in a global environment? And going to the ITC is at least a possibility. Maybe it’s not the right one, but it’s certainly a huge step in the right direction.”
Whether OPEN flies or fails, it’s becoming clear that adapting our legal frameworks to an interconnected new world is at the very heart of this debate. “This is about governance; it’s way beyond copyright laws,” said Post. “It’s really about law in a global network. We don’t have all the answers yet because we’ve never had to think about these things until recently. But we should figure out a way. It’s not easy; I acknowledge that. But I’m not giving up on it. It’s way too important.”
