The Electronic Frontier Foundation is continuing its series of in-depth analysis of the Stop Online Piracy Act, the most dangerous piece of Internet legislation ever introduced, which is set to be fast-tracked through Congress by Christmas. Today, EFF's Corynne McSherry and Peter Eckersley look at the way that SOPA attacks innovation and the integrity of Internet infrastructure.
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In this new bill, Hollywood has expanded its censorship ambitions. No longer content to just blacklist entries in the Domain Name System, this version targets software developers and distributors as well. It allows the Attorney General (doing Hollywood or trademark holders' bidding) to go after more or less anyone who provides or offers a product or service that could be used to get around DNS blacklisting orders. This language is clearly aimed at Mozilla, which took a principled stand in refusing to assist the Department of Homeland Security's efforts to censor the domain name system, but we are also concerned that it could affect the open source community, internet innovation, and software freedom more broadly:
* Do you write or distribute VPN, proxy, privacy or anonymization software? You might have to build in a censorship mechanism — or find yourself in a legal fight with the United States Attorney General.
* Even some of the most fundamental and widely used Internet security software, such as SSH, includes built-in proxy functionality. This kind of software is installed on hundreds of millions of computers, and is an indispensable tool for systems administration professionals, but it could easily become a target for censorship orders under the new bill.
Warner Brothers has filed a brief in its lawsuit against file-locker service Hotfile in which it admits that it sent copyright takedown notices asserting it had good faith to believe that the files named infringed its copyrights, despite the fact that it had never downloaded the files to check, and that it sometimes named files that were not under Warners's copyright, including files that were perfectly legal. Among the files that Warner asked Hotfile to remove was a file called "http://hotfile.com/contacts.html and give them the details of where the link was posted and the link and they will deal to the @sshole who posted the fake" and others.
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The studio also "admits that it did not (and did not need to) download every file it believed to be infringing prior to submitting the file's URL" to the Hotfile takedown tool. That's because "given the volume and pace of new infringements on Hotfile, Warner could not practically download and view the contents of each file prior to requesting that it be taken down."
This is interesting because the DMCA requires a copyright holder issuing a takedown notice to state that it has a "good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." It's hard to see how anyone at Warner Brothers could have formed any beliefs—good faith or otherwise—about files it admits that no human being at Warner had even looked at.
The recently-proposed Stop Online Piracy Act, which is backed by the major Hollywood studios, would give copyright holders new powers to cut off websites' access to payment processors and advertising networks.