SOPA Didn't Die. It's Just Lying In Wait.

from the it-never-ends dept

It would be nice if the public interest community and internet advocates won the SOPA fight because we had the best arguments. Instead, the bill died because of an overwhelming display of popular opposition. Americans from all walks of life urged Congress to reject the bill—and legislators listened.

However, this public outcry did not detract from our excellent arguments, many of which were based around due process, maintaining the integrity and security of the domain name system, and worries about fragmenting the internet. SOPA would have created a system with costs far exceeding whatever benefits it offered private rightsholders. This isn’t a great way to approach public policy.

The basic counter from site-blocking proponents was, and continues to be, that it's really difficult to track down “rogue” website operators and to enforce copyright internationally. From their perspective, it's much easier to just order DNS providers, such as ISPs, to block a list of domain names than it is to locate the people running these sites.

Of course, just because this option is easier for site-blocking proponents doesn’t make it a good idea for the rest of us. Regardless, SOPA was never enacted, which leaves one to wonder: what was their Plan B? To me, a reasonable Plan B would involve locating and shutting down these “rogue” websites (and identifying what tools are needed to make this easier, in a due process-respecting way of course) rather than developing cost-externalizing shortcuts that would create an American splinternet. 

Remember: removing a domain from DNS doesn't even knock a site offline. It just means you have to go to the IP address directly or use a different domain. This maneuver may deter casual users, but online copyright infringement is largely driven by a small number of dedicated people with the skills necessary to find and share a workaround with the public. From the rightsholder perspective, it would be at most a partial “win.” 

Once more, going after “rogue” websites and their operators proves quite difficult in practice. It requires international treaties and law enforcement cooperation. There are many layers to the onion. I am no fan of putting IP provisions in trade agreements and many actually-existing copyright treaty requirements are pretty bad. Still, countries reciprocally respecting each other's rights and ensuring that foreigners have full, fair access to domestic courts is basically one of the core things that treaties are for. That, and ending wars.

In the past ten years, there has been some progress in the fight to both preserve an open internet and ensure that creators are paid appropriately. The two goals are not and never have been in conflict. For example, more commercial material is available online via streaming, which addresses copyright infringement on the demand side. 

But many of the big ideas from the rightsholder lobby to address the supply side continue to be based around roping in more intermediaries—whether it's site blocking, suing CDNs for moving bits from A to B, or even suing broadband providers directly on the theory that they are responsible for what their users do online and should cancel a customer’s internet service upon being “notified” by a rightsholder.

Unfortunately, rightsholders seem to prefer a different Plan B—one where they just wait until the time is right to call for the next site-blocking law. Instead of making it easier to locate and sue the operators of a website devoted to copyright infringement, they’d rather rewire the internet. But this is a bad idea today just as it was ten years ago.

John Bergmayer is Legal Director at Public Knowledge, specializing in telecommunications, Internet, and intellectual property issues. He advocates for the public interest before courts and policymakers, and works to make sure that all stakeholders--including ordinary citizens, artists, and technological innovators--have a say in shaping emerging digital policies.

This Techdirt Greenhouse special edition is all about the 10 year anniversary of the fight that stopped SOPA. On January 26th at 1pm PT, we'll be hosting a live discussion with Rep. Zoe Lofgren and some open roundtable discussions about the legacy of that fight. Please register to attend.

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Filed Under: copyright, due process, site blocking, sopa