Protect-IP Act Senate Whip Count - Open Congress

If you'd like to know where your Senator is on the Protect-IP Act and would like to know what their position is, here is a great page created by Open Congress.


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Stop Online Piracy Act: White House Calls For Rogue Website Legislation, Public Participation in Legislative Process

Below is the response of OMB's IP Czar Victoria Espinel to my signing a petition to Stop Online Piracy Act. Basically, the Administration wants to push ahead with legislation but has agreed with many of the concerns voiced by the public:
Combating Online Piracy while Protecting an Open and Innovative Internet
By Victoria Espinel, Aneesh Chopra, and Howard Schmidt

Thanks for taking the time to sign this petition. Both your words and actions illustrate the importance of maintaining an open and democratic Internet.
Right now, Congress is debating a few pieces of legislation concerning the very real issue of online piracy, including the Stop Online Piracy Act (SOPA), the Protect Intellectual Property Act (PIPA) and the Online Protection and Digital ENforcement Act (OPEN). We want to take this opportunity to tell you what the Administration will support—and what we will not support. Any effective legislation should reflect a wide range of stakeholders, including everyone from content creators to the engineers that build and maintain the infrastructure of the Internet.
While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.
Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small. Across the globe, the openness of the Internet is increasingly central to innovation in business, government, and society and it must be protected. To minimize this risk, new legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal activity. Any provision covering Internet intermediaries such as online advertising networks, payment processors, or search engines must be transparent and designed to prevent overly broad private rights of action that could encourage unjustified litigation that could discourage startup businesses and innovative firms from growing.
We must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet. Proposed laws must not tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security. Our analysis of the DNS filtering provisions in some proposed legislation suggests that they pose a real risk to cybersecurity and yet leave contraband goods and services accessible online. We must avoid legislation that drives users to dangerous, unreliable DNS servers and puts next-generation security policies, such as the deployment of DNSSEC, at risk.
Let us be clear—online piracy is a real problem that harms the American economy, threatens jobs for significant numbers of middle class workers and hurts some of our nation's most creative and innovative companies and entrepreneurs. It harms everyone from struggling artists to production crews, and from startup social media companies to large movie studios. While we are strongly committed to the vigorous enforcement of intellectual property rights, existing tools are not strong enough to root out the worst online pirates beyond our borders. That is why the Administration calls on all sides to work together to pass sound legislation this year that provides prosecutors and rights holders new legal tools to combat online piracy originating beyond U.S. borders while staying true to the principles outlined above in this response. We should never let criminals hide behind a hollow embrace of legitimate American values.
This is not just a matter for legislation. We expect and encourage all private parties, including both content creators and Internet platform providers working together, to adopt voluntary measures and best practices to reduce online piracy.
So, rather than just look at how legislation can be stopped, ask yourself: Where do we go from here? Don’t limit your opinion to what’s the wrong thing to do, ask yourself what’s right. Already, many of members of Congress are asking for public input around the issue. We are paying close attention to those opportunities, as well as to public input to the Administration. The organizer of this petition and a random sample of the signers will be invited to a conference call to discuss this issue further with Administration officials and soon after that, we will host an online event to get more input and answer your questions. Details on that will follow in the coming days.
Washington needs to hear your best ideas about how to clamp down on rogue websites and other criminals who make money off the creative efforts of American artists and rights holders. We should all be committed to working with all interested constituencies to develop new legal tools to protect global intellectual property rights without jeopardizing the openness of the Internet. Our hope is that you will bring enthusiasm and know-how to this important challenge.
Moving forward, we will continue to work with Congress on a bipartisan basis on legislation that provides new tools needed in the global fight against piracy and counterfeiting, while vigorously defending an open Internet based on the values of free expression, privacy, security and innovation. Again, thank you for taking the time to participate in this important process. We hope you’ll continue to be part of it.
Victoria Espinel is Intellectual Property Enforcement Coordinator at Office of Management and Budget
Aneesh Chopra is the U.S. Chief Technology Officer and Assistant to the President and Associate Director for Technology at the Office of Science and Technology Policy
Howard Schmidt is Special Assistant to the President and Cybersecurity Coordinator for National Security Staff


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Fair Use Fridays: How To Watch a Video Blocked in Your Country

This video shows how to use Hotspot Shield, a software that permits IP address masking to bypass controls that make it impossible, in this case, for a German to watch a video created in the U.S. The video shows how to skip ads as well.

I am not suggesting that anyone do this or opining on the legality, it is however important to understand how this type of software works in context of the debates over the Stop Online Piracy Act and the Protect IP Online Act currently roiling Congress. A U.S.-based person doing this in the U.S. to access materials copyrighted in the U.S. may well violate the Digital Millenium Copyright Act by engaging in this activity. Whether content owners will be pursuing Germans someday who use this software, only time will tell.

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How the Stop Online Piracy Act Got To Washington and What's Next #SOPA #PIPA

Video from Public Knowledge on the legislative history of the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA).  Over 71k views on YouTube.

More from Public Knowledge here on the expected cloture vote on January 24 to end the announced filibuster.  Three fifths of the Senate must support cloture (cutting off debate) for the bill to realistically proceed.  Senator Harry Reid is expected to make the cloture motion unless enough opposition arises between now and then.   Many organizations are urging citizens to contact their Senators now to urge opposition.

From Sen. Reid's website here:

Cyber Security to Protect America’s Entrepreneurs from IP Theft: Senate Democrats will seek to enact legislation to enhance our nation’s cyber security and promote the development of a well-educated, well-trained cyber workforce. Improving cyber security across government agencies, critical infrastructure, and the private sector will prevent theft of the intellectual property that is a key engine of the U.S. economy, create a jobs-rich market in security technologies and evaluation, and prevent the cyber attacks that now cost American businesses millions of dollars per year. The legislation will also expand research and development, education, and training programs designed to produce a well-qualified cyber security workforce, a highly competitive tech sector, and the continuing superiority of American innovation.
(highlighting supplied).

What the critics at Public Knowledge say here:

If made law, PIPA (S. 968) would...

• Enable removing access to websites before those websites have the chance to defend themselves in court, raising substantial concerns about the bill's impact on free speech and the First Amendment, and giving rise to a situation that is ripe for abuse.
• Define a number of key terms broadly enough to potentially harm many legitimate and beneficial services. For example, PIPA adds "information location tools" to the list of intermediaries that can be issued an injunction, making nearly every actor on the Internet potentially subject to enforcement.
• Have an unintended impact on the safe harbor status of services like YouTube because they specifically target sites that "enable or facilitate" infringement, and also requires action by third parties such as online service providers, financial transaction providers, and ad networks.
• Create conflicts between DNS servers by requiring the operators of certain domain name servers to blacklist certain DNS requests—you can see the potential for instability in the system.
• This instability could also lead to increased cybersecurity risks, including cyber attacks and identity theft, as users migrate to offshore DNS providers not subject to PIPA's provisions.
• Possibly lead to retaliation by foreign governments to take similar action against U.S. websites.
• Seriously undermine a key value in our foreign policy—how could we, as a country, support openness and access in communication and condemn the use of DNS blocking, when we are doing it ourselves?
• Risk setting a precedent for other countries to justify measures that would hinder online freedom of expression and association.

(highlighting supplied).
Mike Masnick at Techdirt summarizes the actions that are being taken to stop PIPA when Congress gets back in session later this month here and how SOPA is part of Hollywood's history of trying to kill innovation here.

From the U.S. Chamber of Commerce website:
How Do Intellectual Property Rights Drive Innovation?

As Abraham Lincoln said, “the patent system added the fuel of interest to the fire of genius…” IP protections ensure that American scientists, engineers, artists, writers, entrepreneurs and innovators recoup their investment and are rewarded for their work, incentivizing them to develop new ideas.

The patent system is the engine of the idea factory. In exchange for exclusive rights for a limited period of time, the inventor must publicly disclose the technical know-how behind a new invention. This allows other innovators to leverage past discoveries, constantly injecting new ideas into the public domain.

Congress ought to take the time to engage in the meaningful legislative process outlined in Bill Patry's excellent and newly-published How To Fix Copyright, which I reviewed here, with Patry's spirited response here (no Bill, I don't think you're churlish!)

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Copyright is Not in the Machine: Book Review - William Patry’s How To Fix Copyright

How to Fix Copyright by William Patry
Oxford University Press 2011
262 pp.  $21.95 

Is copyright too long?  Too thick?  Too wide?  Bill Patry thinks so, and that should matter to you if you care about our economy, our democracy, and our future.  He also thinks that digital locks are not the answer to promoting creativity or to making copyright profitable to authors.   For those concerned with anticompetitive governmental regulation, this book is an eye-opener.  Patry argues that the author who supports strong copyright in the hopes of getting paid is shooting herself in the foot.  According to Patry, current copyright laws are not getting artists and authors paid and indeed, because they are too strong, are having a harmful effect on authors, artists and creativity itself, shifting monopolistic power to a few strong corporations.

                Like Columbia law professor-turned regulator Tim Wu, Patry fears what Wu calls (in his book of the same name reviewed here) the Master Switch, that is, a lockdown of cultural exchange on the internet that will transform  consumers into passive purchasers of pre-made culture funneling massive profits to a few media monoliths at society’s expense.   Like Prof. Lawrence Lessig (Copyright Law Does Not Make Sense here),  Patry is concerned and makes a case that copyright terms that are too strong and that interpretations of fair use that are too restrictive have had a chilling effect on the very creativity and innovations that have created practically the only new jobs in the 21^st Century economy.   And like his last book, Moral Panics and the Copyright Wars reviewed here, How to Fix Copyright spends a good deal of time criticizing those who resist technological change and disruptive technologies.

                But How To Fix Copyright distinguishes itself from its predecessors by offering a blueprint for change.   Patry falls short of offering an actual legislative proposal (perhaps his proposal will be his next book), which is probably a wise thing.  He’s smart enough politically to know that if he spells out certain details, his proposals would be taken out of context by his ideological enemies.  So HowTo Fix Copyright focuses first on making the case that copyright is broken and that not only society at large is bearing the cost, but that the creative community, copyright’s intended beneficiaries, are suffering the most.  Patry’s focus on the economics makes a powerful case that should catch the ear of big business, since the cost of using copyrights is a tax-like burden on large and small businesses alike.  Patry makes a compelling case that where too much monopoly power is granted, the rest of the economy and society suffers.    Patry’s argument should appeal to the Occupy Wall Street movement (Wall Street is not far from Midtown) as much as it should to the tax-averse members of the U.S. Chamber of Commerce.

Patry calls for an open legislative process in which the economics of copyright can be studied.  Artists and authors are not making a living, and Patry’s view is that giving more legislative gifts to middlemen who have refused to compete and adapt to the reality of business competition will have a toxic and destructive effect on the economy and our culture.   Patry wants Congress to open hearings at and dig out the truth in a serious overhaul of copyright law.   The last real overhaul of the U.S. copyright law was in 1976 and that was based on proposals from the 1950’s.   Patry makes the argument that not only are our laws based on nineteenth century industries, but that we’ve lost a lot of the legislative and economic wisdom built into earlier laws.   Rather than dictating quick fixes, How to Fix Copyright emphasizes the importance of transparent legislative  process in getting “buy-in” to the process of repairing copyright.  During that process, Patry suggests that a “one size fits all” approach to such questions as copyright terms cannot be sustained and that Congress engage in a consultative legislative process to determine what length of copyright works best, and for which works.

HowTo Fix Copyright doesn’t duck tough questions.   Patry recommends that authors of copyrights are going to have to trade the concept of “control” for the concept of “getting paid”.   Patry takes collecting societies to task on this issue, particularly in Europe.  Throughout the book, Patry moves effortlessly from U.S. to European examples giving the book a valuable depth and understanding of the international copyright marketplace.   One of Patry’s conclusions is that the Berne Convention must be reworked to permit formalities, that is the requirement of registration for copyrighted works as a condition of protection.  With U.S. adoption of Berne in 1989, a lot of materials that no one intended to be covered by copyright have fallen under the copyright laws.

Copyright law is no longer an arcane field affecting few of us, in the last decade it has become more deeply embedded in our lives than many other areas of law.  Given the centrality of copyright law to our future, if you are going to read one business book this year, this should be it.  It is published by Oxford University Press right as Congress is trying to railroad through the Protect-IP Act and the Stop Online Piracy Act, both of which are frightening attempts to lock down American culture and to convert the internet to a Chinese-style authoritarian system where DNS masking will be used to censor websites and ISPs will be transformed into spying operations designed to extract more money from consumers at the behest of a few conglomerates.  How to Fix Copyright does not address these specific legislative proposals, but it will help you understand what the debate is and why it is so important.  Unfortunately, Silicon Valley does not know how to make its case in Congress.  Instead of sensible reforms that will protect copyright owners while ensuring enough breathing space for technological innovation, Congress keeps backing legislation destructive to most of the economy that will benefit only a few monopolists.

There will probably be something in How To Fix Copyright that offends just about everyone (Patry’s take on newspapers, for example, is pretty brutal and a little unfair).  But Patry’s pedigree warrants a hearing.  He’s worked in the Copyright Office and been on the front lines of copyright legislation.  More on Patry at Wikipedia here.  He’s argued copyright cases in federal court.  He’s taught copyright law and written treatises on copyright law.  His Patry Copyright Blog was an erudite, combative, passionate joy to read.  And although How To Fix Copyright takes great care to distance itself from Google, Patry is Senior Counsel to Google, an entity with a large stake in perhaps the most disruptive technology ever to confront copyright.  If Google is listening to this guy, you should at least know what he is telling them.

Free excerpts of How to Fix Copyright courtesy Bloomberg here.

Boing Boing's Cory Doctorow calls How to Fix Copyright "incandescent" here.


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Fair Use Fridays: Hitler Reacts to Stop Online Piracy Act #sopa

Genius take on the dangerous and radical Stop Online Piracy Act that is now being rammed through Congress by conglomerates using fabricated numbers to grab control over the internet.

The mashup you see above is an example of "fair use" defined in 17 U.S.C. 107 - it is an exception to copyright infringement under the Copyright Act.

More on the fair use doctrine here.
For more on the history of Hitler/Downfall videos, check out Know Your Meme here.


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Video Attacks Pending Copyright Legislation - Stop Online Piracy Act #SOPA

Great video from Mike Masnick at Techdirt going after the U.S. Chamber of Commerce's spokesman's support for the Stop Online Piracy Act (SOPA).

SOPA seeks to give the type of control over the internet that exists in China to private copyright owners in the U.S.   This is a tremendous power grab that would change the nature of the internet.  Since it uses DNS masking, it would make the internet less secure and less efficient.

Invented statistics on copyright infringement are nothing new.  But this radical and flawed legislation is seriously problematic and is being rushed through Congress at a time when little else is getting done.

Lots more on SOPA at Techdirt here.
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Copyright Legislation: Petition to Stop E-Parasite Act Tops 8k In Signatures

Mike Masnick of Techdirt points out an excellent C-Net article criticizing the House version of the Protect-IP Act (the E-Parasite Act).

It is astonishing that both houses of Congress appear to be highly motivated to pass this radical and sweeping legislation that appears to be designed to shut down the one bright spot in the American economy: the internet.   Hollywood is seeking powers that would render the U.S. version of the internet much like the Chinese censorship-driven model.

This is important legislation.  It ought to be watched carefully and opposed by anyone sensible.

To sign on to a petition to stop this legislation, go here, more information at Mashable.

The language of the petition below:

we petition the obama administration to:



Stop the E-PARASITE Act.


This Bill would allow essentially allow A Great Firewall of America and would be a shameful desecration of free speech and any sort of reasonable copyright law. The new Law would allow copyright holders to force websites which have any copyrighted material to be blocked by ISP companies around the country, without requiring that the websites be given time to take the offending material down. It would also put pressure on ISP companies to monitor their users like never before, a gross invasion of privacy. This bill is a direct assault on a free internet and a shameful attempt by copyright lobbyists to destroy net neutrality. Essentially it's a censorship law that would end the internet as we know it in America.

Created: Oct 31, 2011


Issues: Civil Rights and Liberties, Government Reform, Regulatory Reform

Learn about Petition Thresholds

It's up to you to build support for petitions you care about and gather more signatures. A petition must get 150 signatures in order to be publicly searchable on WhiteHouse.gov.

Over time, we may need to adjust the petition signature thresholds, but we'll always let you know what the thresholds are.

Signatures needed by November 30, 2011 to reach goal of 25,000  16,747 

Total signatures on this petition8,253.You've signed this petition


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House Copyright Bill Called Dangerous #sopa #ip #law

House Copyright Bill Casts Dangerously Broad Net | Center for Democracy & Technology

Protect-IP Act: Powerful In Rem Remedies for Private Plaintiffs Against Offshore Infringers

Support The Pirate Bay T-Shirts

Last week the Senate Judiciary Committee voted the Protect-IP Act out of committee.  Sen. Ron Wyden put a hold on it on Thursday.   I read it and my comment focus on the aspects of interest to the civil litigator.

Section 4 "Eliminating the Financial Incentive to Steal Intellectual Property Online" of the Protect-IP Act would let a private attorney, on behalf of a copyright or trademark owner, commence an in personam action against a registrant or owner of an "Internet site dedicated to infringing activities".   If these folks cannot be found or don't have addresses within the U.S., the private plaintiff could bring an in rem action against the domain name itself.    As part of the remedies authorized, you would be able to get a court to order any company processing financial transactions with the domain to stop, as well as any company advertising on the domain name.

Invoking these provisions would subject a plaintiff to a fairly high standard of proof.   Critics have focused on other aspects of the bill giving the Attorney General sweeping powers (see links below).   For a U.S. IP owner facing an offshore scofflaw who is doing business in the United States, Section 4 of the bill seems to be a fairly sensible and well-balanced remedy.
A copy of the full text of the Protect-IP Act passed by the Senate Judiciary Committee last week here.

The Electronic Frontier Foundation' criticisms of the bill here.

Last Thursday, Senator Ron Wyden of Oregon blocked this "internet censorship" bill, story here.

Larry Downes' take at Forbes here.   Techdirt on Larry Downes here.

The 1709 Blog reports Google's defiance of search-engine blocking provisions here.


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