Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet by and David Moon Patrick Ruffini David Segal Page A
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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 anindustrial 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 beillegal 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
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 beillegal 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
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