How SOPA 2.0 Sneaks In A Really Dangerous Private Ability To Kill Any Website
from the scary dept
I already wrote a big post about yesterday's SOPA markup day one. While we're moving forward on day two, I wanted to call out one key point that was really made clear by an amendment offered by Rep. Jared Polis late in the day yesterday, which hasn't received nearly enough attention. As you may recall, with the "manager's amendment" version of SOPA (i.e., SOPA 2.0), the "notice-and-shut off funding" section of the private right of action in Section 103 was removed. This was good, because we've seen how the notice-and-takedown provision of the DMCA has been widely abused.However, what most people missed was that the bill effectively sneaks this back into the bill in a much worse form in Section 105, which supposedly grants "immunity" to service providers for taking voluntary action to stop infringement. The true impact of this section was only made clear by Rep. Polis' attempt to limit it, as he highlighted how this broad immunity would likely lead to abuse. That's because this section says that anyone who takes voluntary action "based on credible evidence": basically gets full immunity. Think about what that means in practice. If someone sends a service provider a notice claiming infringement on the site under this bill, the first thing every lawyer will tell them is "quick, take voluntary action to cut them off, so you get immunity." Even worse, since this is just about immunity, there are no counternotice rules or anything requiring any process for those cut off to be able to have any redress whatsoever.
This is scary.
Rep. Polis, quite reasonably sought to limit this section to avoid such a situation. As he noted, anyone can send in a notice under this section, and the service provider is likely to take action to keep immunity. That's super wide open for abuse.
The debate on this point was downright painful. Some of the others on the Committee insisted that Polis' interpretation of the section was wrong. But it's not. Rep. Ted Deutsch kept misreading the law, pretending that because it talks about the "actions" in earlier sections (that you can take to get immunity), it means that the conditions for those actions must be the same (i.e., there needs to be a court order). But the law doesn't say that at all. Others insisted that there needed to be a court order to get the immunity as well.
Let's put this simply: that's ridiculous. And wrong. Very wrong. And anyone who can think for two damn seconds would know it's wrong. You don't need immunity for obeying a court order. Because if you get a court order, you pretty much have to obey (or end up in court). But more to the point, this whole section is about "voluntary actions". Obeying a court order is not a voluntary action. If this section were just about cases where there's a court order, then it wouldn't make any sense at all. It clearly applies to voluntary actions outside of a court order.
The response from SOPA defenders was painful in its cluelessness. Rep. Watt more or less admitted that he thought Polis' interpretation was wrong, so he wouldn't support the amendment. That makes no sense. If Watt thinks the language already says that, what's the harm of clarifying that with the text of the Polis amendment? It makes no sense to refuse to do so. And if Watt and Deutsch really believe that the meaning of 105 is clear and doesn't need any amendments to clarify, they might want to talk to some actual legal experts, because they're analyzing the bill and reading it to say exactly as Polis interpreted it. And since this is a private right in the bill, if lawyers are already interpreting it that way, that means it'll get used that way. So why not clarify? It's mind-boggling.
Perhaps even more ridiculous was Rep. Howard Berman, who, in trying to agree with Watt and Deutsch, made the exact opposite argument and actually agreed with Polis, while claiming he didn't and using that agreement as a reason to vote against the amendment! I'm not joking. Berman pointed out that, contrary to Deutsch and Watt's claims, it made no sense to have an immunity section that only dealt with court orders for all the reasons we listed above. Basically, while Deutsch and Watt pretend that the section requires a court order, Berman proves that it doesn't... and then says that's why he's voting against the amendment. It really was a head smashing moment.
In the end, despite vigorous attempts by Polis and Rep. Lofgren to explain why this was so problematic, the Committee basically just ignored the whole thing and rejected the amendment. End result: SOPA 2.0 contains a crazy scary clause that's going to make it crazy easy to cut off websites with no recourse whatsoever. And this part isn't just limited to payment providers/ad networks -- but to service providers, search engines and domain registrars/registries as well. Yes. Search engines. So you can send a notice to a search engine, and if they want to keep their immunity, they have to take the actions in either Section 102(c)(2) or 103(c)(2), which are basically all of the "cut 'em off, block 'em" remedies. That's crazy. This basically encourages search engines to disappear sites upon a single notice. It encourages domain registries to kill domains based on notices. With no recourse at all, because the providers have broad immunity.
It's this kind of insanity that should terrify people about this bill moving forward.
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Filed Under: copyright, immunity, jared polis, private right of action, sopa
Reader Comments
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Take it and sux it megacorps your own rules used to screw you..
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Mike, quit hitting us over the head already.
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This is a NEW development in an ONGOING story. Quit whining and go read some other site if you don't care enough to follow what's happening with SOPA.
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Mike hates SOPA. He reminds us 50 times a day it seems. Ever heard of "The Boy Who Cried Wolf"? It's gotten to the point where it stopped being informative or even prompting lively debate, and has moved on to a discussion of entrenched positions. With so much of the same shit over and over, nobody is saying anything new.
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Are you daft? The reps spent all day going through proposed amendments and debating the bill. The text of the bill has been changed. For those of us interested in SOPA, that's news. It would be absolutely insane if Mike didn't cover it (and I suspect whiny assholes like you would be here mocking him for giving up or not being a good blogger or something if he didn't, too)
Seriously - if you don't care about SOPA, you are clearly on the wrong blog. Why are you still reading?
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Soon Mike (and friends) will be writing that SOPA harms the children and puts poison in out water, and is a tool of info-terrorists. It probably is responsible for the mortgage crisis too.
"Seriously - if you don't care about SOPA, you are clearly on the wrong blog. Why are you still reading?"
No, I am on the right blog - a room full of people who need to get out more and get a real life education. Think of it as being on par with trying to get people out of a cult (or to leave the Republican party).
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We know you would rather everyone kept quiet about SOPA.
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c'mon Masnick, you're getting feathers everywhere
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And Mike is writing about SOPA many times because it keeps coming back with more and more bizarre facts and absurdities. And if the thing is so bad that only stories about copyright abuse, lack of due process and Govt abuse of power pop up then you can see we truly have a problem.
Also, Step-2.
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They might not make ANY money at all..,
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They might have made less. Pissing off your fans is no way create paying customers
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I think my Sarc-o-meter might need re-adjustment from all these SOPA threads.
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So, who are they? Huh? Where are all these so called crooks?
I'm starting to wonder if the grain from all the popcorn plants Hollywood sent you isn't mood altering, somehow.
They must all be hiding under your bed or in your closet.
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Why else are you pushing so hard for this bill? What are the stated reasons? Profits, jobs, organized crime, terrorism...
Yes, you are crying that the sky is falling.
Every accusation you people make is exactly what you are doing.
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Well, I guess every cloud does have a silver lining.
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The idea of Scientology using these laws is frightening.
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That's the kicker, though. Everyone is so focused on how the RIAA/MPAA would/could use this, people (whether for or against this bill) aren't thinking about how other people would/could use this. The entertainment industry is going to be in for a very rude awakening when/if it actually forces this bill through.
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Here's The Plan
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Re: Here's The Plan
The old SOPA on a rope-a-dope ploy. Gets em every time.
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Re: Here's The Plan
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Not your personal army.
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Re: Here's The Plan
Another course of action would be just mass exiting from the Internet, leaving all those companies that rely on the net for their profits completely dry...
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Re: Here's The Plan
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Re: Here's The Plan
You should change your name to FUDster. SOPA is limited to FOREIGN sites, not DOMESTIC sites. Why can't you get that through your thick head.
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b) even if it is, it's not relevant to the fundamental issue
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Horror show
Mike, how can you watch that and keep your mental health?
And Zoe, man, she's my hero. Polis and the others. They PARTICIPATE in that madness and retain their sanity...
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funny
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Other "Acts"
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Comment
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Kinda funny...
So out come the ad homs.
It would be funny if they weren't so intent on passing a bad bill that will do massive harm to the economy.
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Re: Kinda funny...
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When pretty much everything about the bill is awful, that is what's going to happen.
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Re: Kinda funny...
I'll bite, Mike.
Section 105 says that it provides immunity "only for taking the actions described in section 102(c)(2) or section 103(c)(2) with respect to an Internet site, acting in good faith and based on credible evidence . . . ."
Sections 102(c)(2) and 103(c)(2) both refer "reasonable measures" to take "actions based on court orders."
In sum, all Section 105 does is say that those parties that take reasonable measures to take action based on court orders are immune from liability. That's it.
There's no need for all the FUD, Mike. If you want to be taken seriously, you really should calm down. Seriously, dude. You sound like a freaking nut job zealot.
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Re: Re: Kinda funny...
How does a court order equate to a voluntary action?
If a court order is issued, you must comply or face penalties. As for a voluntary action, I'll just paste part of the dictionary.com definition for 'voluntary':
4. Law.
a. acting or done without compulsion or obligation.
b. done by intention, and not by accident: voluntary manslaughter.
c. made without valuable consideration: a voluntary settlement.
So again, if you must do something or face consequences (via a court order) how is that considered voluntary?
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Re: Re: Re: Kinda funny...
Section 105 clearly applies only to taking an action based on a court order. It's got nothing to do receiving an informal request and taking voluntary action. Mike is just making this shit up he's so desperate. He obviously lets his zealotry blind him.
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Section 105 itself does not mention court orders either. In fact here is the part of section 105 mentioning sections 102 and 103:
"for taking the actions described in section 102(c)(2) or section 103(c)(2) with respect to an Internet site, acting in good faith and based on credible evidence"
Notice the part I put in bold, that's the part we're having a problem with. Instead of saying 'based on a court order' like sections 102 and 103 it instead says 'acting in good faith and based on credible evidence'. The legal experts that Mike mentioned in the article are concerned about this difference in phrasing. Their interpretation is that it does not require a court order. One of the main points of the Polis amendment was if section 105 really does require a court order, why not make that more clear? Why leave it phrased in such a way that legal experts, with far more experience than anyone on this site, interpret it in a way so different than you and other SOPA supporters are interpreting it?
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Also, from the linked analysis:
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Re: Re: Kinda funny...
Sections 102(c)(2) and 103(c)(2) both refer "reasonable measures" to take "actions based on court orders."
Multiple legal scholars point out that there's nothing that makes it clear that it is only "based on court orders." It does not say that it only applies to the conditions of section 102(c)(2) or 103(c)(2), but the actions. The actions involve blocking, denying payment, etc.
You're reading it wrong.
And, even if you're reading it right -- then why are you against clarifying this section to make it clear that your interpretation is the accurate one. That's all Polis wanted.
In sum, all Section 105 does is say that those parties that take reasonable measures to take action based on court orders are immune from liability. That's it.
Again, multiple legal scholars who actually have graduated law school and worked in the real world note otherwise.
And considering that this is a private action here, it's likely that many lawyers in the real world will also interpret it the way it's written (not the way you read it).
So why not clarify?
There's no need for all the FUD, Mike. If you want to be taken seriously, you really should calm down. Seriously, dude. You sound like a freaking nut job zealot
I sound like a "freaking nut job zealot" for echoing the concerns of a well respected Congressman and multiple respected legal scholars? Really?
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Re: Re: Re: Kinda funny...
I don't care how many legal scholars you have. It's one sentence, written in English. You don't have to be a Yale scholar to read it and understand it. It's a huge twist and stretch of the English language to read it the way you are.
Yes, it refers to the "actions" taken in those two sections. But those actions all occur PURSUANT TO A COURT ORDER. You cannot escape the clear import of the text that says it provides immunity ONLY for those who take actions pursuant to those sections that apply only to those taking actions pursuant to a court order.
I have no problem with clarifying it further, as I stated above. But it doesn't need clarifying since it's clear enough already.
And no matter what it says, there is no reason for you to be so completely over the top with all of this. You really, really, really sound like a fucking idiot with all of the SOPA stuff. Seriously, dude. You don't have to be so extreme to get your message across--well, maybe you do. I know you're focusing of swaying the lowest common denominator, and they don't really respond well unless the rhetoric is turned up to 11. It's a shame that that's your target audience.
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Re: Re: Re: Re: Kinda funny...
Disagreeing with you while providing facts, figures and detailed explanations for why your position is wrong, is not going "completely over the edge."
We can debate the issues as much as you like, but any time you know you have no argument you resort to ad homs. What's next? An average_joe foot stomping tantrum on an unrelated post?
Yes, it refers to the "actions" taken in those two sections. But those actions all occur PURSUANT TO A COURT ORDER
Again, as pointed out by multiple legal scholars and multiple congressional reps, nothing in section 105 says that that it refers to the actions pursuant to a court order. Just to the actions. You know damn well that it's possible to just refer to the actions without it lumping in the court order part.
Hell, even Howard Berman, who's on your side and helped write the bill ADMITTED DURING THE MARKUP that it DOES NOT require a court order.
And I'm the nut job?
You really, really, really sound like a fucking idiot with all of the SOPA stuff
I don't actually. I'm explaining my position. If I sound like "a fucking idiot" to you, it's because you (as you've shown in the past) have a very strong anti-Techdirt bias. But lots of people who I respect a lot more than you seem to think my analysis is pretty spot on.
Seriously, dude. You don't have to be so extreme to get your message across
Who's more extreme? Me? Who cites the sections of the bill, and explains why it's a problem and how it will cause problems, while citing legal scholars? Or you, who immediately calls me "a freaking nut job" and "a fucking idiot"?
I would suggest that your anyone of reasonable intelligence can figure out for themselves who's being honest and direct here, and who's "freaking out" and exaggerating.
Unlike you, however, I won't presume to speak for everyone else.
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You are really reaching here, Joe.
For one thing, the former title of Sections 104 (the pre-markup version of 105) was "Immunity For Taking Voluntary Action Against Sites Dedicated To Theft Of U.S. Property." That version referenced the same definitions and actions, yet the text of both versions is the same.
For another thing, if 105 was really to be contingent on a court order, why on Earth would it include the language "acting in good faith and based on credible evidence?" If you're acting as a result of a court order, then this would be completely irrelevant.
Finally, if what you said is the right interpretation, then the bill should remove Section 105 entirely, since service providers et. al. are already immune from liability for actions resulting from court orders. It's in (the new version's) Section 104(b)(2):
The only possible way to interpret Section 105 is that it refers to voluntary actions.
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Re: Re: Re: Kinda funny...
I read it that if they are following the court order while acting in good faith and based on credible evidence, then they are covered. A court order would tell them what action to take in general, while this section explains how they must act to be given immunity for their specific actions while carrying out the order.
Your argument about 104(b)(2) is actually pretty tight. Good job.
Either way, I think the argument below that Section 230 has a similar provision (as does the DMCA if I recall correctly) is right on. Chances are these entities wouldn't be liable anyway for cutting off parties that are abusing their services (they likely have terms of service that say just that), so it's not a big deal to say they are immune per se for taking voluntary actions.
Trying to paint this as "scary" is idiotic FUD.
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Re: Re: Re: Re: Kinda funny...
Section 230, as others (including you, I believe) have pointed out, does not apply to intellectual property.
And, no, the DMCA safe harbors do not have a similar provision. There is a limit on liability for taking down content, but it is subject to 512(g)(2), which lays out explicit rules about it.
(Also of note: both those provisions target specific content, whereas SOPA and PROTECT IP target entire websites.)
Trying to paint this as "scary" is idiotic FUD.
Please tell me why it wouldn't play out exactly as Mike said it would.
Incidentally, if you need an example of how and why he is right, consider this: nothing in the DMCA says that sites are liable for infringement if they do not follow the notice-and-takedown process. In this sense, obeying 512 is entirely voluntary. In theory, you could disregard 512 altogether, and still not be liable for infringement.
Now, how many sites do you know about that intentionally do not follow 512? How many judges do you know that have decided that a site did not follow the DMCA, yet was not liable for infringement?
The situation that Mike describes is exactly what will happen if this bill passes. Getting entire websites blacklisted from search engines, advertisers, or registrars will be about as easy as sending a notice or two, and those entities will block them, for exactly the same reason they follow the notice-and-takedown procedure right now. Except under SOPA, they won't even have to follow 512(g)(2).
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Your example of how this would play out doesn't strike me as a problem that can't exist already. What's stopping private parties from sending informal requests now? And who says this isn't already happening (I don't pretend to know, but I wouldn't be surprised to hear this happens all the time). As I said above, these companies can already terminate services in good faith without liability--it most likely says exactly that in their terms of service. And the point about the CDA was not the fact that IP is exempt, but that providers have immunity in the CDA context for good faith terminations, and that's not a problem. I just don't buy the parade of horribles that you guys are trying to sell here.
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That's true, but a statute would be a much stronger thing to rely on than a TOS document. Without SOPA there is some chance they could get in trouble for terminating services, and no particular reason to do so since there's no framework indicating that they should. With SOPA, if they have one of these notices they're faced with potentially huge liability if they don't comply, and definitely none if they do. So obviously the incentive is to take down first and ask questions later, if ever.
Furthermore, the law would also cover them from a PR perspective. It's much easier to tell customers, investors, the public, etc that "SOPA made us do it" than "we decided it would be best to cut off this customer's service". In the former case, the anger is (partially) redirected at Washington, while in the latter it's squarely at the service provider.
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OPEN has this too
Issa & Wyden's OPEN bill has a clause granting immunity for voluntary action too. Let's hope they take it out.
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Re: OPEN has this too
He's a tech geek who ran a super successful internet company. He knows what this bill will do.
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Re: OPEN has this too
It will never see the light of day.
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would be a lot cheaper if that was even remotely on anyone's agenda
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He's, what some people would call, a freetard.
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Creative use of the comma there!
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Are you kidding? He's seen as the clown prince. No way buffoonery gets censored. It's far too much fun laughing at his absurdity.
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having fun on mars?
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having fun on mars?
If you think inside the Beltway is the real world, you're as deluded as both of the people who believe you have any creative talent. As Chubby discovered on his trip to Washington, it's an alternate reality.
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Sopa will force user-generated content sites to withdraw their anonymity mechanisms, meaning that this person will be revealed, not only as a hypocrite, but as a buffoon who signed their own death warrant, so to speak.
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Online Academic discourse just pulled a hamstring....
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A taste of their own medicine would be good for them!
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A taste of their own medicine would be good for them!
Apparently you're slow or something. The bill is limited to actions against foreign sites.
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So let me do this slowly, as we know your fingers to far in the IP Industries Collective ASS...
Proof or GTFO... Simple and to the point... having watched and read a lot of the cow squeeze that is SOPA it is nowhere clear or exact its Foreign only... FFS you must be dumb...
IF you can only make money by having a monopoly, do us a favor, excuse yourself from the human race so we can actually move forward...
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> notices against the MPAA, the RIAA, the House
> and the Senate?
It's going to be.
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It doesn't look nearly as broad as portrayed.
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Re: It doesn't look nearly as broad as portrayed.
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Re: It doesn't look nearly as broad as portrayed.
There's a quotation from Winston Churchill:
"The only way for evil to win is for good men to do nothing."
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Pssst, Mike, they already snuck that into 47 U.S.C. sec 230...
47 U.S.C. sec 230(c)(2)is an existing provision of the Communications Act generally considered to be foundational by many technologists. It already states:
"No provider or user of an interactive computer service shall be held liable on account of--
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1) [subparagraph (A)].
Section 230 is more than broad enough to cover actions taken to deter piracy as "otherwise objectionable." Consequently, I conclude that the main effect of the provision that has you so frightened would be to clarify that a similar result would follow as to efforts undertaken to deter counterfeiting by intermediaries not qualifying for Section 230 protection.
Before hyperventilating again, you might also consider checking the Terms of Service of intermediaries: like access, search, advertising, and payment processing services. Almost all of them will reserve the right to terminate service to users engaged in illegal acts.
And yet--somehow--the Internet has survived....
--Tom Sydnor
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Re: Pssst, Mike, they already snuck that into 47 U.S.C. sec 230...
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Re: Re: Pssst, Mike, they already snuck that into 47 U.S.C. sec 230...
When anyone refers to Tom as "level-headed" it makes all of DC laugh.
Mike's really gone over the edge lately--lost all credibility
I love it when people assume what my "credibility" is. If you saw the list of folks who called this week asking for advice, you'd be shitting yourself.
But that's when I know AJ is getting desperate. When he has to declare that no one takes me seriously.
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Re: Re: Re: Pssst, Mike, they already snuck that into 47 U.S.C. sec 230...
You may fool others, Mike, but you don't fool me. I wouldn't trust you to mow my grass.
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Re: Re: Re: Re: Pssst, Mike, they already snuck that into 47 U.S.C. sec 230...
Then why do you keep visiting this site, making disparaging remarks, make an ass of yourself and your pro-SOPA position, and make your argument that much weaker with ad hominem attacks?
It's a lot easier to believe Mike and his observations when you do nothing credible for yourself in regards to actually debating a topic.
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Re: Re: Re: Pssst, Mike, they already snuck that into 47 U.S.C. sec 230...
That's a commentary on their level of desperation, not your insights and wisdom. I never dreamed the other side was in such a full-blown panic.
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Re: Re: Re: Re: Pssst, Mike, they already snuck that into 47 U.S.C. sec 230...
I think that tells us who is really panicking!
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Re: Re: Re: Re: Re: Pssst, Mike, they already snuck that into 47 U.S.C. sec 230...
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Re: Re: Re: Re: Re: Re: Pssst, Mike, they already snuck that into 47 U.S.C. sec 230...
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Re: Pssst, Mike, they already snuck that into 47 U.S.C. sec 230...
The wording is vague enough that it worries a lot of people in SOPA. SOPA has DNS blocking "as a final resort" now. How long do you think it will be before UMG or Sony BMG decide they don't like site X and go to that provision first? And before you say anything, that's already happened.
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Re: Pssst, Mike, they already snuck that into 47 U.S.C. sec 230...
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Re: Pssst, Mike, they already snuck that into 47 U.S.C. sec 230...
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Re: Pssst, Mike, they already snuck that into 47 U.S.C. sec 230...
Hi Tom! It's always lovely when you come visit and make such blatantly false statements.
Section 230 is more than broad enough to cover actions taken to deter piracy as "otherwise objectionable."
Sorry, Section 230 specifically does not apply to intellectual property law. Didn't read that far down?
Also note the key difference in Section 230, which was designed for a very different purpose: to allow companies to freely block content that *they* found objectionable. Section 230 refers to content that the *service provider* finds objectionable. Section 105 of SOPA, on the other hand, refers to what happens if you receive "evidence." That's what makes 105 a notice and takedown provision, while it doesn't apply at all to 230.
Before hyperventilating again, you might also consider checking the Terms of Service of intermediaries: like access, search, advertising, and payment processing services. Almost all of them will reserve the right to terminate service to users engaged in illegal acts.
Again, totally unrelated to the issue at hand.
And yet--somehow--the Internet has survived....
(1) No one said the internet wouldn't survive. We worry about the overall impacts of it breaking *how things have been done* and thus *hindering innovation* but no one has said it kills off the internet. When you resort to outright lies, we know the Tom Sydnor who kills think tanks with his crazy claims has arrived on the scene...
(2) Again, the immunity in Section 230 is totally different and unrelated to the immunity in Section 105. It's a sleazy lobbying trick to pretend they're talking about the same thing.
Planning to quote Lessig out of context again any time soon, Tom?
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Thank you Mike
You are doing the right thing by asking "what could possibly go wrong?" Those who suggest otherwise are simply wrong.
Interpretation of these laws is often complicated, and for the reasons provided in the link in the article, section 105 may actually introduce some private rights, or so it seems. It at least requires clarification.
Thanks again for pointing me to this information and keep up the good work.
Regards.
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Re: Thank you Mike
This article (and especially the linked article) raises some very good points that should not be dismissed. What's the rush? Lets get the legislation right.
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Petition S.O.P.A
http://www.change.org/petitions/congress-do-not-pass-the-sopa-bill
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So long.
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It's this kind of insanity that should terrify people about their so-called representatives.
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It'd teach them a lesson they'd probably rather not learn.
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Re:
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They had no problem taking down wikileaks. Removing purchased e-books.
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http://judiciary.house.gov/news/12142011%20SOPA.html
It does affect US based sites in that US search engines must not provide links to the blocked foreign sites.
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At least China still has free internet.
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Re: At least China still has free internet.
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Re: At least China still has free internet.
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Re: At least China still has free internet.
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Re: At least China still has free internet.
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Re: At least China still has free internet.
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A Thank You
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I'm gonna send them a letter so they have to take the government down.
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tanks
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Votetocracy
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That's true, but a statute would be a much stronger thing to rely on than a TOS document. Without SOPA there is some chance Opstijgend vocht
they could get in trouble for terminating services, and no particular reason to do so since there's no framework indicating that they should. With SOPA, if they have one of these notices they're faced with potentially huge liability if they don't comply, and definitely none if they do. So obviously the incentive is to take down first and ask questions later, if ever.
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tanks
tanks for post
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