Apparently All That Stuff About Needing SOPA To Go After Foreign Sites Was Bogus

from the just-saying dept

Tim covered the story of ICE doing its annual censorship binge in seizing domain names without adversarial hearings (as we still believe is required under the law). However, there were a couple of additional points worthy of a followup. First off, if you remember, one of the key reasons why we were told SOPA was needed was that for all of ICE's previous domain takedowns it was "impossible" for it to take down foreign domains. Except... as ICE's own announcement here shows that was completely untrue. It seems to have had no difficulty finding willing law enforcement partners around the globe to seize websites without any due process:

...recognizing the global nature of Internet crime, this year the IPR Center partnered with Europol, who, through its member countries, executed coordinated seizures of foreign-based top-level domains such as .eu, .be, .dk, .fr, .ro and .uk. This effort is titled Project Transatlantic and resulted in 31 domain name seizures.

"This operation is a great example of the tremendous cooperation between ICE and our international partners at the IPR Center," said ICE Director John Morton. "Our partnerships enable us to go after criminals who are duping unsuspecting shoppers all over the world.

Yeah. Apparently it's possible for ICE to censor those sites if it actually does a little work and calls up its law enforcement pals. Another example of why SOPA was never necessary in the first place.

The other issue? ICE's own release shows that ICE appears to have no understanding of the intellectual property laws it's seeking to enforce. From that release:

During this operation, federal law enforcement officers made undercover purchases of a host of products; including professional sports jerseys, DVD sets, and a variety of clothing, jewelry and luxury goods from online retailers who were suspected of selling counterfeit products. If the copyright holders confirmed that the purchased products were counterfeit or otherwise illegal, seizure orders for the domain names of the websites that sold these goods were obtained from federal magistrate judges.

Note the confusion (or ignorance) here. Counterfeits are about trademarks, not copyrights. Most of what they discuss are items covered by trademark. But then they say "if the copyright holders confirmed that the purchased products were counterfeit." Yes, there may be some copyright claims mixed in here (especially with "DVD sets"), but for the most part this is about trademark. Why say "copyright holders" unless you're either willfully misrepresenting what's happening... or ignorant of the law you're supposedly helping to enforce?

We've complained before about ICE boss John Morton's apparent deliberate conflation of copyright and counterfeits in the past -- but usually it's just lumping them together. To confuse the two here, in an official release from a government group that's enforcing the law, suggests some serious problems. ICE is either ignorant of the law it's supposedly enforcing... or maliciously misrepresenting itself. That seems like a problem.

Filed Under: copyright, dhs, domain seizures, foreign sites, ice, sopa

US Chamber Of Commerce Appears To Argue That SOPA & PIPA Apply To NO Websites At All

from the figure-that-one-out dept

Yesterday, I was on a "panel" discussion at the Congressional Internet Caucus's "State of the Net" event. At some point, I believe we'll have some video of that, which we can post. However, at one point, moderator Tim Lordan asked panelist Steve Tepp, from the US Chamber of Commerce, about the claims that SOPA/PIPA only impact "foreign" sites, and argued that under the definitions in the bill sites like Google.ca or Amazon.co.uk would be subject to the bills, and thus they would effect the American companies who run them. Tepp insisted this wasn't true, because the bill only applies to "US-directed sites" and a site that is a .ca or .co.uk wouldn't be considered US-directed. However, First Amendment lawyer Marvin Ammori sensed a pretty obvious problem with that. If what Tepp argues is true, he's basically saying that SOPA and PIPA apply to no websites at all. Remember, supporters of the bills insist that they don't apply to .coms or .orgs or any other site using a TLD controlled by a US register. So that wipes out that batch of domains. But, here, Tepp now seems to be claiming that it also doesn't apply to any site with a country specific TLD... because those aren't US-directed. So... um... what's left?

First, the bills define US-directed site to mean almost any site that you can access in the US. PIPA does not have a definitive test, but it lets courts determine which sites are directed to the US based on several indicia, including whether the “Internet site has reasonable measures in place to prevent such goods and services from being accessed from or delivered to the United States.” (PIPA, page 48.) Meaning, if the site hasn’t blocked American users from accessing the site, then it’s US-directed. The whole point of the Internet, though, is that sites are globally available, and not blocked for particular countries. SOPA, on the House side, merely requires “minimum contacts” sufficient for personal jurisdiction, which is a very low standard that would touch most sites–as any law student would learn after reading the International Shoe case in the second week of Civil Procedure. (See SOPA, page 9).

Second, this argument is unconvincing because it suggests that the bills would cover zero sites in the whole world. If Amazon.co.uk and Google.ca are exempt from the bill, then so are ThePirateBay.co.uk or ThePirateBay.ca. The point of SOPA and PIPA, in theory, is to target foreign sites, who are defined based on having foreign domain names. So, the Chamber is saying, “Don’t worry Google.com won’t be subject to the bills because that’s not a foreign site.” Now it says, “Don’t worry, Google.ca won’t be subject to the bills because it’s not a US-directed site.” Does that mean neither MegaUpload.com or MegaUpload.ca is subject to the bill? By my count then, the bills don’t apply to any sites that have a domestic domain name nor do they apply to any sites that have a foreign domain name.

The Chamber is trying to convince us that the bills apply to zero websites and companies? They wouldn’t apply to MegaUpload.com or MegaUpload.ca, Google.com or  Google.ca, ThePirateBay.org or ThePirateBay.fr?

This doesn’t strike me as highly convincing.Why would studios and labels spend millions trying to pass a bill that affects zero websites and companies?

Indeed. It's this kind of duplicity that has people so fed up with the lobbyist/politician lies being spread about this bill by supporters. The language was written purposely, so that they could insist it won't actually do any of the awful things the bill clearly allows... while knowing full well that's exactly how the bill will be used (regularly) after it passes.

Filed Under: blackouts, domestic sites, foreign sites, pipa, protect ip, protests, sopa, steve tepp
Companies: us chamber of commerce