Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet (11 page)

(Again, I ask you: does this sound like Washington, D.C. to you? Since when do members of Congress vote for things they oppose to “keep the process moving”? Whoever was behind this was good.)

And then, the process suddenly stopped. Sen. Ron Wyden, the Democrat from Oregon, put a hold on the bill. Calling it a “bunker-busting cluster bomb” aimed at the Internet, he announced he would not allow it to pass without changes.

Now, as you may know, a single senator cannot actually stop a bill by themself. But they can delay it. By objecting to a bill, they can demand that Congress spend a bunch of time debating it before getting it passed. And Sen. Wyden did—he bought us time. A lot of time, as it turned out—his delay held all the way through the end of that session of Congress, so that when the bill came back it had to start all over again.

And since they were starting all over again, they decided they might as well give it a new name. And that’s when it began being called PIPA and eventually SOPA.

Cory Doctorow (
craphound.com
) is a science fiction novelist, blogger, and technology activist. He is the co-editor of the popular weblog Boing Boing (
boingboing.net
), and a contributor to
The Guardian,
the
New York Times, Publishers Weekly, Wired,
and many other newspapers, magazines, and websites. He was formerly Director of European Affairs for the Electronic Frontier Foundation (
eff.org
), a non-profit civil liberties group that defends freedom in technology law, policy, standards, and treaties. He holds an honorary doctorate in computer science from the Open University (UK), where he is a Visiting Senior Lecturer; in 2007, he served as the Fulbright Chair at the Annenberg Center for Public Diplomacy at the University of Southern California. This essay and one that appears later in this book are adapted from Doctorow’s forthcoming book
,
Information Doesn’t Want to Be Free.

The copyright wars are nothing new. Five hundred years ago, Europe convulsed in war over who could access the Bible and under what circumstances, battling over whether the uncertain benefits of universal access to scripture were worth more than the undeniable accomplishments and majesty of the incumbent religious institution.

Things went on in this vein for quite some time.

Eventually, the state stepped in, aiming to mediate between the different interests surrounding the ever-expanding print industry—hence, copyright, though for varied specific reasons and rationales. The 1710 English Statute of Anne set out to protect publishers who invested in producing works. The framers of the U.S. Constitution included a clause “promoting the useful arts and sciences” by granting monopolies of limited time to authors. The Berne Convention (created by Victor Hugo in the 1880s) talked about the “moral right” of authors to control their works. The UN Declaration of Human Rights has a section on “protection of the material and moral interests” in your “scientific, literary or artistic productions.”

But persistent throughout was the battle between technology and the culture industry. At the turn of the 20th century, composers called performers pirates and insisted that recording music was a form of theft. John Philip Sousa, the great American composer, fought the record player: “Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cords will be eliminated by a process of evolution, as was the tail of man when he came from the ape.”

Thirty years later, the same record producers, now dominant in the music industry, turned to fight the emergent radio broadcasters, who had the audacity to argue that they should be able to play records over the air. The record industry was furious and tried to block radio from playing records without explicit permission from the artists. Their argument was, “When we used technology
to appropriate and further commercialize the works of composers, that was progress. When these upstart broadcasters do it to our records, that’s piracy.”

Flash forward another forty years: along came cable TV, which appropriated the broadcasts that were sent over the air and retransmitted them over cables. The broadcasters argued (unsuccessfully) that this was a form of piracy and that the law should put an immediate halt to it. Their argument? The familiar one: “When we did it, it was progress. When they do it to us, that’s piracy.”

And then only a few short years later, in 1976, Sony’s VCR arrived, instigating a landmark lawsuit from the cable operators and the studios. The eight-year legal battle, concluding with the 1984 Supreme Court “Betamax” ruling, featured anti-VCR briefs that fundamentally went like this: “When we took the broadcasts without permission, that was progress. Now that someone’s recording our cable signals without permission, that’s piracy.”

Sony won, and fifteen years later, it was one of the first companies to get in line to sue Internet companies that were making it easier to copy music and videos online. And so the copyright wars continue.

Internet advocacy group Fight for the Future formed during the heat of the PIPA battle and quickly produced a web video to educate Internet users about the bill. Their widely watched video noted the history of copyright holders and industries suing to undermine disruptive new technologies. The screencap above captures a scene in the video reminding viewers about past lawsuits against both Betamax VCR’s and MP3 players.

Historically, copyright has worked as a form of industry regulation. The rule of thumb that copyright uses to figure out if you’re part of the copyright industry is whether you are making copies. This made perfect sense in the past century. Anyone who was pressing a record had a million-dollar record factory. Anyone printing a book had a printing press, a bunch of skilled printers, and a building to house the whole operation.

Equating copying with industrial activity made sense when copying was hard. The problem is that over time, computers have made copying exponentially easier and cheaper. Before the Internet, it was very difficult for the state or rights holders to discover that copies—possible offenses—were being made. Therefore, there was almost no pressure on intermediaries to police copyright on the behalf of the rights holders. No one asked the companies that sold school notebooks to ensure that fanfic was never scribbled in their pages. No one asked art teachers to police their students to ensure that they were staying on the right side of copyright in their figure-drawing classes.

But all this changes in an era of Internet-scale intermediaries, networked communities, and automated notice-and-takedown procedures. Flickr or Facebook becomes the preferred way for kids to share their drawings with one another.
Fanfic.net
becomes the preferred place for fanfic authors to share their work with one another. Technically, the companies providing this service are “making money off copyright infringement,” but no more than the mall food court near the local high school makes a few bucks off the students who gather there to show off their infringing art while eating lunch.

During the SOPA/PIPA fight, many Internet users feared the bills would lead to rampant litigation and unreasonable enforcement actions by copyright holders. During protests in New York City on January 18, 2012, many of them created witty signs to explain the dangers.

It’s impossible to control who loans a friend lunch money, but that doesn’t mean financial regulation is dead. It just means that financial regulation has to limit itself to the kinds of transactions that take place at an industrial scale, among industrial players. There’s nothing wrong with the idea of a big, high-stakes industry having legally enforceable rules. But the key is that these regulations apply to industries, not individuals, families, or private groups. As an
industrial regulation, copyright is alive and well. Yet copyright as a means of regulating cultural activities among private individuals isn’t dead, because it’s never been alive.

The World Intellectual Property Organization, founded in 1967 as a private group for “rights holders” (big companies from the entertainment, pharmaceuticals, and broadcast sectors) and now a specialized agency of the United Nations, writes the world’s major copyright treaties. In 1996, WIPO agreed upon the WIPO Copyright Treaty (WCT), and its cousin, the WIPO Performers and Phonograms Treaty (WPPT). There are two key aspects to the WCT: anti-circumvention and intermediary liability. Anti-circumvention requires laws that prevent “picking” digital locks. These locks are the subsystems hidden in digital devices that allow the use and playback of encrypted files while keeping them encrypted. Intermediary liability requires notice-and-takedown laws. Such laws make online intermediaries, such as ISPs, game servers, and payment processors, comply with requests to take down any file they host or be held to “strict liability”—that is, possibly be sued for damages if the file’s creator is deemed infringing.

In practice, recent national copyright laws (the Digital Millennium Copyright Act [DMCA] in the U.S. and the EU Copyright Directive [EUCD] in the EU) have gone beyond the WCT. In terms of anti-circumvention, the WCT only requires laws against breaking a lock to commit an act of copyright infringement. The DMCA makes it illegal to break all digital locks, period. Other countries around the world have followed suit. In terms of intermediary liability, since 2008, the U.S. Trade Representative has been working through closed-door “plurilateral” negotiations to create copyright treaties with its major trading partners. In concordance with domestic bills, these treaties—the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership (TPP)—have across the board sought to increase intermediary liability, while diminishing checks and balances related to it.

The overreach of these new copyright laws and proposals is large. In terms of anti-circumvention, laws of preventing the circumvention of all digital locks for any purpose make it illegal to determine what your computer is doing—including stopping it from doing things that you don’t like. The inevitable consequence is that bad things will happen on our computers. And since digital locks don’t work against determined attackers, the only way to keep files, programs, and keys out of wide circulation is to give rights holders the legal authority to demand that files be removed without court orders, to establish national censor walls that monitor Internet traffic and interdict requests for sites that rights holders have added to blacklists, and to ban tools that defeat any of this censorship.

The Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA), as well as related proposals, would ban the circumvention of Domain Name System (DNS) blocks and allow for IP blocking. DNS converts human-friendly Internet addresses (like ThePirateBay.se) into machine-readable numeric addresses (like 194.71.107.50). Efforts, like DNSSEC, to add a layer of security to DNS and detect and evade shenanigans at DNS servers would be
illegal under SOPA and PIPA, as DNSSEC can’t (and shouldn’t be expected to) distinguish between the false DNS records doctored by a criminal, an oppressive government, and a record label. Conversely, SOPA and PIPA would require ISPs to block traffic from certain known IP addresses, such as 194.71.107.50, the address of ThePirateBay.se, and outlaw the tools that get around this block.

At the same time that anti-circumvention laws have threatened networks and other core technologies, laws upping the ante on intermediary liability have instantiated a regime of petty censorship and placed privacy under attack. Under current DMCA notice-and-takedown rules, it is already trivial to silence one’s political enemies or people with whom you simply disagree. Examples of takedown abuse include:

• Police departments whose officers are recorded committing illegal acts claiming copyright on and demanding takedown of the videos of these acts
  
• Diebold using takedown notices to suppress a memo detailing its complicity in selling flawed voting machines
  
• “The Church of Scientology using takedown to attack opponents publishing secret church documents.”