Comments and questions re SOPA (revised)
Dec. 16th, 2011 02:54 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
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lediva pointed me to another important section. If you can see this, I've revised and re-posted it)
Insert IANAL caveat here...
I really shouldn't be spending time on this, but it's time-sensitive so I've been reading about SOPA. I just want to toss an observation out there for comment, as it (sort of) goes against a lot of the furor I've been reading online.
As usual, I urge anyone who wants to have an opinion on this to read the actual law (PDF is here, though I'd recommend searching thomas.gov for "Stop Online Piracy Act" to get the much more readable text version).
In doing so, the part that most caught my interest was section 102, which covers the scary DNS-based blocking stuff. However, sec 102.a.3 says that in order for action like blocking a domain to be taken it must be a foreign site that would be subject to seizure if it was domestic. In other words, the suggestion that youtube could go offline because of this does not seem to be correct (though iirc the clarification that the site must be foreign was added after the initial uproar). It looks like "all" SOPA is trying to do is provide a mechanism whereby the government can do to foreign sites what they can, already, under existing law, do to domestic ones.
I don't know what kinds of hurdles have to be overcome for the government to be able to seize a server, but the fact that youtube is still around makes me wonder how much danger it or similar foreign sites would actually be in if SOPA passed. Does anyone know what these requirements are?
There's still an important and IMO valid argument to be made that taking down whole servers rather than just the offending content is like using a shotgun to try to swat flies, but from my reading of the bill, at least, it seems that SOPA doesn't threaten anything that isn't already allowed, in an even more extreme form, for domestic sites.
Another thing I'm confused about is the talk of how this would give the MPAA et al the authority to arbitrarily blacklist sites from the internet merely by accusing them of infringement. Unless said accusations are already grounds for seizure, I don't see how this can be.
Am I wrong here? What am I missing?
Update:
lediva points out sec 103, which seems to be where a lot of the uproar is coming from, and indeed it is a lot more scary. Sec 103.5.b allows copyright holders to file claim against "Internet sites dedicated to theft of U.S. property". That term has a very specific definition, given in 103.a.1, which I suspect would not include sites like youtube, vimeo and others cited in some of the doomsday scenarios I've read, but it's complicated enough and cites other laws enough that I'm going to be extra careful to hide behind my IANAL shield re that suspicion.
Assuming a site qualifies a dedicated to theft of U.S. property, the rights holder must provide "specific facts to support the claim that... immediate and irreparable injury, loss, or damage will result... in the absence of timely action".
Now, two observations here:
1) The requirement of "specific facts" sounds nice and all, but I've seen the level of rigor with which big music companies, for example, vet their "facts" before going after someone. For example, Jason Webley has a song that is completely original, but for whatever reason triggers a false positive in a program that Warner Music uses to search youtube for instances of people putting their stuff online. As a result, numerous people have, with permission, put up even live versions of that song on youtube only to have it taken down via a DMCA notice. Most people fight and win, but that's not the point. As with the DMCA, for sites deemed "dedicated to theft" site, SOPA would allow for action to be taken, and then you get your chance to call bullshit.
2) However, 103.d.2 lays out exactly what claimants can demand, and it is basically two things:
1) For a payment provider (e.g. PayPal) to stop servicing the site
2) For an ad provider (e.g. Google Ads) to stop servicing the site
Providers have 5 days to comply or the claimant can seek "appropriate monetary sanction" against the provider (not the site), per 103.d.2.
Note that DNS-based blacklists are not on that list. I'm not saying it's not potentially bad, especially for sites that rely on user payments, but coming back to the claims that this would allow the MPAA et al to arbitrarily remove sites from the U.S. Internet, from what I can tell, these claims seem to be based on conflating things in sec 102 with sec 103 when they don't actually overlap. I'm not saying SOPA isn't worthy of concern, but let's at least be concerned about the right things.
Again, am I wrong? Anyone better-informed have a different take? This post is kind of an exercise in collaborative learning. I'm not claiming expertise, but here's the data I've got and my interpretation therof. If I'm wrong, I'd really like to know it. If I'm right, I'm really irritated by the number of sites that seem to be taking second and third hand misinformation and running with it without actually checking their facts, and maybe is a small thing that I can do against that.
Frankly, I'd rather just be wrong (unless it passes).
lediva pointed me to another important section. If you can see this, I've revised and re-posted it)Insert IANAL caveat here...
I really shouldn't be spending time on this, but it's time-sensitive so I've been reading about SOPA. I just want to toss an observation out there for comment, as it (sort of) goes against a lot of the furor I've been reading online.
As usual, I urge anyone who wants to have an opinion on this to read the actual law (PDF is here, though I'd recommend searching thomas.gov for "Stop Online Piracy Act" to get the much more readable text version).
In doing so, the part that most caught my interest was section 102, which covers the scary DNS-based blocking stuff. However, sec 102.a.3 says that in order for action like blocking a domain to be taken it must be a foreign site that would be subject to seizure if it was domestic. In other words, the suggestion that youtube could go offline because of this does not seem to be correct (though iirc the clarification that the site must be foreign was added after the initial uproar). It looks like "all" SOPA is trying to do is provide a mechanism whereby the government can do to foreign sites what they can, already, under existing law, do to domestic ones.
I don't know what kinds of hurdles have to be overcome for the government to be able to seize a server, but the fact that youtube is still around makes me wonder how much danger it or similar foreign sites would actually be in if SOPA passed. Does anyone know what these requirements are?
There's still an important and IMO valid argument to be made that taking down whole servers rather than just the offending content is like using a shotgun to try to swat flies, but from my reading of the bill, at least, it seems that SOPA doesn't threaten anything that isn't already allowed, in an even more extreme form, for domestic sites.
Another thing I'm confused about is the talk of how this would give the MPAA et al the authority to arbitrarily blacklist sites from the internet merely by accusing them of infringement. Unless said accusations are already grounds for seizure, I don't see how this can be.
Am I wrong here? What am I missing?
Update:
lediva points out sec 103, which seems to be where a lot of the uproar is coming from, and indeed it is a lot more scary. Sec 103.5.b allows copyright holders to file claim against "Internet sites dedicated to theft of U.S. property". That term has a very specific definition, given in 103.a.1, which I suspect would not include sites like youtube, vimeo and others cited in some of the doomsday scenarios I've read, but it's complicated enough and cites other laws enough that I'm going to be extra careful to hide behind my IANAL shield re that suspicion. Assuming a site qualifies a dedicated to theft of U.S. property, the rights holder must provide "specific facts to support the claim that... immediate and irreparable injury, loss, or damage will result... in the absence of timely action".
Now, two observations here:
1) The requirement of "specific facts" sounds nice and all, but I've seen the level of rigor with which big music companies, for example, vet their "facts" before going after someone. For example, Jason Webley has a song that is completely original, but for whatever reason triggers a false positive in a program that Warner Music uses to search youtube for instances of people putting their stuff online. As a result, numerous people have, with permission, put up even live versions of that song on youtube only to have it taken down via a DMCA notice. Most people fight and win, but that's not the point. As with the DMCA, for sites deemed "dedicated to theft" site, SOPA would allow for action to be taken, and then you get your chance to call bullshit.
2) However, 103.d.2 lays out exactly what claimants can demand, and it is basically two things:
1) For a payment provider (e.g. PayPal) to stop servicing the site
2) For an ad provider (e.g. Google Ads) to stop servicing the site
Providers have 5 days to comply or the claimant can seek "appropriate monetary sanction" against the provider (not the site), per 103.d.2.
Note that DNS-based blacklists are not on that list. I'm not saying it's not potentially bad, especially for sites that rely on user payments, but coming back to the claims that this would allow the MPAA et al to arbitrarily remove sites from the U.S. Internet, from what I can tell, these claims seem to be based on conflating things in sec 102 with sec 103 when they don't actually overlap. I'm not saying SOPA isn't worthy of concern, but let's at least be concerned about the right things.
Again, am I wrong? Anyone better-informed have a different take? This post is kind of an exercise in collaborative learning. I'm not claiming expertise, but here's the data I've got and my interpretation therof. If I'm wrong, I'd really like to know it. If I'm right, I'm really irritated by the number of sites that seem to be taking second and third hand misinformation and running with it without actually checking their facts, and maybe is a small thing that I can do against that.
Frankly, I'd rather just be wrong (unless it passes).
no subject
Date: 2011-12-16 10:17 pm (UTC)First, is taking action under this law less work than seizing a U.S. domain? If so, the "well, they can already do this to domestic sites, and the internet isn't gone" argument doesn't hold; maybe the limiting factors are time and money, rather than the perceived odds of winning in court.
Second, along similar lines, does the victim of a spurious government action under section 102 have less recourse than the owner of a wrongfully seized domestic domain does? (I'm guessing the answer is "no, because there's nothing either one can do".)
Third, who determines whether a foreign site "would be" subject to seizure? Is it the same as who determines whether a domestic site actually IS? I mean, I can say that I only kick people in the shins if they would, theoretically, be found duly deserving of shin-kicking by a jury of their peers, and I could be totally sincere. But unless I actually start convening juries, I'm still just a guy walking around kicking people who I don't like.