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SOPA vs. PIPA: Anti-piracy bills, uproar explained

SOPA vs PIPA

If you’ve been paying attention to the increasingly heated debate over the “Stop Online Piracy Act” (SOPA), you may have noticed a significant spike in today’s news about the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011,” or PROTECT IP Act (PIPA, for short). Newsletters and blog posts have flooded in, with the declaration that “PIPA is the new SOPA.” But what, exactly, is PIPA? And why is it the ‘new SOPA’? Let’s break down the differences and similarities between these two pieces of vexed anti-piracy legislation, and why major Internet players are blacking out their sites this Wednesday, January 18, in an attempt to keep either of these bills from becoming law.

What are SOPA and PIPA?

SOPA and PIPA are, essentially, two versions of the same anti-piracy bill. SOPA is the House of Representative’s version (House Bill HR. 3261), while PIPA resides in the Senate (Senate Bill S. 968). Both SOPA and PIPA are intended to curb online piracy, specifically piracy facilitated by “foreign rogue websites,” meaning sites that are hosted outside of the United States, and thus outside the reach of US law. (The Pirate Bay is a prime example of a “foreign rogue website.”)

So, SOPA and PIPA are exactly the same?

No, not exactly. While SOPA and PIPA have the same goals, and much of the same provisions, they are not identical. The wording of each section is often only slightly different, though the meaning is the same, making these differences meaningless.

There are a number of key differences, however. Unlike SOPA, PIPA lacks a provision that requires search engines (like Google and Bing) to remove a “foreign infringing site” from their indexes. This provision in SOPA is one of the most highly criticized.

PIPA also contains provisions that require greater court intervention to go after an accused website than SOPA does. But it does not contain any provisions that would penalize copyright holders for misrepresenting the alleged infringing activities of an accused website — a potentially disastrous omission for innocent sites put through the PIPA ringer. SOPA does contain a provision that penalizes those copyright holders who “knowingly materially misrepresent” the alleged infringement of a website by making them “liable for damages, including costs and attorneys’ fees, incurred by the person injured by such misrepresentation as a result of the misrepresentation.”

Does the lack of a search engine provision make PIPA less offensive to critics?

It has, until now, at least somewhat. But SOPA’s search engine provision is far from the only section with which critics found a problem, in either SOPA or PIPA. Both bills require US-based payment services, like PayPal, or American advertisers, to stop doing business with foreign sites that are found to be “dedicated to infringing activities.” In addition, both bills currently require Internet service providers to block users from accessing specific websites using a technique known as DNS blocking, which is used in countries like China to block citizens’ access to certain websites.

Because of an outcry from a large number of technical experts (including the very people who created the Internet in the first place) who say that DNS blocking could cause damage to the underlying infrastructure of the Internet (the domain name system, or DNS), both Rep. Lamar Smith (R-TX), the chief sponsor of SOPA, and Sen. Patrick Leahy (D-VT), chief sponsor of PIPA, have agreed to strip the bills of the DNS-blocking provision.

What else do critics dislike about SOPA/PIPA?

Also included in both bills is an anti-circumvention provision, which would make it illegal to inform users how to access blocked sites. According to First Amendment expert Marvin Ammori, a Legal Fellow with the New America Foundation Open Technology Initiative and an Affiliate Scholar at Stanford Law School’s Center for Internet & Society, this provision could be interpreted to require any website that features user-generated content (think Facebook, Reddit, or YouTube) to make sure that no circumvention information has been posted to their site, or risk legal action.

Another provision highly cited by critics is the “vigilante” part of SOPA/PIPA, which allows ISPs to voluntarily block access to certain foreign websites, “in good faith,” if they have “credible evidence” that these sites are devoted to illegally distributing copyrighted material. Both SOPA and PIPA give immunity to ISPs who take voluntary action against websites that are believed — but not proven — to be dedicated to the illegal distribution of intellectual property. Because of this, critics say the potential to abuse this power is unconscionable.

Finally, critics argue that SOPA and PIPA could severely stifle free speech online. Lawrence Tribe, a renowned constitutional law expert at Harvard Law School, argued in a letter to Congress that SOPA’s vague definition of a “rouge website” could potentially suppress free speech without a proper judicial hearing.

“Conceivably, an entire website containing tens of thousands of pages could be targeted if only a single page were accused of infringement,” writes Tribe. “Such an approach would create severe practical problems for sites with substantial user-generated content, such as Facebook, Twitter, and YouTube, and for blogs that allow users to post videos, photos, and other materials.”

PIPA’s definition of an “Internet site dedicated to infringing activities” appears to be more narrowly defined than SOPA’s definition of a “foreign infringing site,” but could still potentially apply to the examples cited by Tribe.

If SOPA or PIPA became law, would it mean widespread Internet censorship?

Maybe yes, maybe no. For the most part, critics of these bills are basing their arguments on the potential for abuse — a hypothetical worst-case scenario. In other words, if copyright holders and the US government never exploit the powers granted to them in SOPA/PIPA, no innocent website will be affected. In fact, that is the argument of these bills’ supporters; that law-abiding, US-based websites and companies have nothing at all to worry about. But the critics (which include more than a hundred law experts from places like Stanford and Harvard Law) say that the bills are too broad in their language, making them ripe for abuse. The Electronic Frontier Foundation cites instances in which current copyright laws, like the Digital Millennium Copyright Act (DCMA), have been used by companies to silence speech that they found distasteful.

Protecting intellectual property still seems like an important goal. Are there any proposed alternatives to SOPA/PIPA?

Yes, opponents of SOPA/PIPA have introduced the “Online Protection and Enforcement of Digital Trade” or “OPEN Act,” to both the House and the Senate. Rather than give powers of enforcement to the Attorney General, and to copyright holders, OPEN simply expands the Tariff Act of 1930 to allow the International Trade Commission (ITC) to “take action against unfair digital imports or unfair imports that are digitally-facilitated by foreign rogue websites,” instead of being limited to physical goods that violate US intellectual property law. This includes requiring financial institutions (again, like PayPal or Internet advertisers) to sever business ties with sites that are found to be in violation of US copyright law. Supporters of SOPA/PIPA say OPEN will be ineffective, and the bill has so far failed to gain any serious traction in either the House or the Senate.

Why has the focus shifted from SOPA to PIPA?

Because House Majority Leader Eric Cantor (R-VA) told SOPA opponent Rep. Darrell Issa (R-CA) this weekend that SOPA will not come up for a vote until consensus on the bill is achieved. Prior to Rep. Cantor’s assurance that SOPA would not come up for consideration before the House, it appeared likely that the bill — which had broad support in the House — would be voted on, and pass.

Since it is unlikely that anything close to consensus will be achieved anytime soon, the threat of SOPA’s passage in the near future is extremely low. That said, the bill is not completely dead, and could be revived at anytime.

PIPA, on the other hand, is still very much alive. It has already passed through committee hearings — a step further than SOPA ever took. And Senate Majority Leader Harry Reid (D-NV) has so far stood firm on bringing PIPA up for a vote before the full Senate on January 24.

Update: It appears that SOPA is not as down-and-out as previously thought. Rep. Smith has vowed to resume markup hearings on the bill in February. That said, support for both SOPA and PIPA is dwindling, with co-sponsors of both bills pulling their support.

Does PIPA have a good chance of becoming law?

Unclear. Currently, the bill still has bipartisan support in the Senate, but it is growing weaker by the day. This past weekend, six Republican senators wrote a letter to Sen. Reid, asking him to postpone a vote on the bill. And the White House issued a statement declaring that it “will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet,” a vague threat to veto either SOPA or PIPA, if one of these bills managed to make it all the way to President Obama’s desk.

So, what’s next?

A mass online blackout on Wednesday, January 18. In an attempt to spread the word about SOPA/PIPA, a number of popular websites — including Reddit, Boing Boing, Destructoid, I Heart Chaos, TwitPic, all 64 sites under the Cheezburger Network, WordPress and more than 3.8 million pages of Wikipedia, among others — will display a page informing visitors the potential consequences of PIPA (or SOPA) becoming law.

Updated with additional information at 12:11am ET

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