When the World Wide Web Becomes the World Wild Web: PIPA, SOPA, OPEN Act, CISPA

and The Internet Revolution

Thomas Dubuisson Law In Cyberspace, Intellectual Property Law LL.M Program The George Washington University Law School, Washington, DC 20052, USA tdubuisson@law.gwu.edu

INTRODUCTION.................................................................................................................. 2 1. The battle against two anti-piracy bills: PIPA and SOPA ..............................................................................4 a. The roots .......................................................................................................................................................... 4 i. Political Approach......................................................................................................................................... 4 ii. Legal approach .............................................................................................................................................. 6 b. The real PIPA/SOPA effect and the accuracy of the claims .......................................................... 8 i. The effect of the anti-piracy Act .............................................................................................................. 8 ii. Accuracy of the claims ............................................................................................................................... 9 - Section 102. Action by Attorney General to protect U.S. customers and prevent U.S. support of foreign infringing sites. ................................................................................................................... 9 - Section 103. Protection of U.S. customers and prevention of U.S. funding of sites dedicated to theft of U.S. property. ................................................................................................................13 c. A temporary suspension? .........................................................................................................................17 2. Online Protection and Enforcement of Digital Trade (OPEN Act) ..........................................................20 a. Introduction ..................................................................................................................................................20 b. Comparison between SOPA, PIPA and the OPEN Act.................................................................20 i. Similarities between the acts ...................................................................................................................20 ii. Differences between the acts ..................................................................................................................21 - Who can instigate proceedings against foreign Internet sites? .................................................21 c. Conclusion ....................................................................................................................................................23 3. The Cyber Intelligence Sharing and Protection Act (CISPA) ....................................................................24 4. ACTA, temporarily dead? ......................................................................................................................................27 a. Introduction ..................................................................................................................................................27 b. ACTAs effect on Intellectual Property rights..................................................................................29 c. Secret or no secret? The debate is over. ..............................................................................................29 d. Compatibility with EU treaties and fundamental rights ................................................................31 e. ACTA approval postponed: for now or forever? .............................................................................32 5. The Internet Blackout ..........................................................................................................................................33 a. January 18, 2012: the world against PIPA/SOPA ...........................................................................33 b. February 11, 2012: Europe against ACTA ........................................................................................35 CONCLUSION ................................................................................................................... 36 BIBLIOGRAPHY................................................................................................................. 39

INTRODUCTION Since the beginning of the year 20121, the United States has been immersed in a worldwide ultra-repressive copyright enforcement agenda. The Protect IP act (PIPA), Stop Online Piracy Act (SOPA), Online Protection and Enforcement of Digital Trade (OPEN Act), the Cyber Intelligence Sharing and Protection Act (CISPA), and the Anti-Counterfeiting Trade Agreement (ACTA) are invading the medias everywhere. PIPA and SOPA are two bills that give the Government permission to seek legal action with any website content that infringe on copyright law. For the movie and music industry, these bills are the perfect dream. For Internet users and the small start-ups that depend on the Internet, probably not. In the meantime, the dangerous ACTA agreement is currently been discussed in Europe but seems to face considerable obstacles.

It is not a secret anymore: digital technology is transforming copyright, for better and for worse.2 Infringement is widespread and this situation needs to change. An attempt has already been made in the past. In 1998, congressional enactment of the anti-circumventions provisions of the Digital Millennium Copyright Act (DMCA) was a remarkably forwardlooking effort3 to stop copyright infringers4 and balancing interests of intellectual property (IP) holders and potential innovators. Since then, the Internet has evolved. The creation of a DMCA II was welcome. Instead of going through this safe next step, the United States Congress has embarked on a particularly slippery slope. As a result, bills are so repressive today and they may dictate the way the next technologies are going to operate, in whole or in part. The current reality that laws are incapable of catching the development of new

technologies, based on the American comedy-drama film Catch Me If You Can, is perhaps not a fiction anymore. But not at any price, especially when it affects the Internet democracy.
1 2

The research for this paper was completed in April 2012. Ian Hargreave, Digital Opportunity. A review of Intellectual Property and Growth 26 (May 2011), http://www.ipo.gov.uk/ipreview-finalreport.pdf 3 For a critic of the DMCA, see, e.g., Unintended Consequences: Twelve Years under the DMCA (2010), https://www.eff.org/wp/unintended-consequences-under-dmca#footnote43_fc85k7c 4 For examples of Congress stated purpose in enacting the DMCA's anti-circumvention provisions, see 144 Cong. Rec. H7093, H7094-5 (Aug. 4, 1998); Senate Judiciary Comm., S. Rep. 105-190 (1998) at 29; Judiciary Comm., H. Rep. 105-551 Pt 1 (1998) at 18; House Commerce Comm., H. Rep. 105-551 Pt 2 (1998) at 38.

In fact, the creation of a global legal framework for intellectual property right protection, particularly for (digital) copyright, needs to meet at least three challenges: the fact that laws change, that laws differ between countries, and that laws are open to interpretation.5 More precisely, cyberspace demands a new understanding of how regulation works. It compels us to look beyond the traditional lawyers scope beyond laws, or even norms. It requires a broader account of regulation, and most importantly, the regulation of a newly salient regulator.6 SOPA and PIPA demonstrate how difficult it is for an established democracy to protect both intellectual property and the fight for the intellectual freedom on the Internet. This research paper will be devised in five parts. The first part will analyze the legal issues of these controversial bills and more precisely the sections concerning copyright infringement. The second part will address how the OPEN Act might be a respectable middle in comparison to SOPA and PIPA and what are the legal solutions proposed in this bill. The third part briefly concerns the new method to prevent cyber-attacks, through CISPA, with its impact on intellectual property rights. The fourth part will discuss the recent developments in Europe with ACTA, namely the issues concerning the European ratification and the future of ACTA in the world. Finally, the fifth part will be devoted to the online and offline Internet revolution/Internet blackout that occurred in January and February 2012.
5 6

Matthew David, Peer to peer and the Music Industry, The Criminalization of Sharing 59 (2010). Lawrence Lessig, Code Version 2.0. 8 (2008).

1. The battle against two anti-piracy bills: PIPA and SOPA a. The roots i. Political Approach In the last couple of years, the U.S. government, with a lot of backing from Hollywood, Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA), is resolved to put an end to online piracy of intellectual property rights, more precisely copyright infringement. Indeed, a recent study has revealed that about onequarter of all Internet traffic is copyright infringement7 and according to the MPAA, pernicious forms of digital theft occur through the use of websites.8 Based on these facts, the 111th and 112th Congress [have] introduced legislation that would strengthen U.S. law enforcement's capacity to take action against foreign "rogue" websites that traffic in [sic] stolen and counterfeit American-made films, television shows, music and other goods. This legislation is bicameral, bi partisan, and would protect hundreds of thousands of American jobs, billions in taxes and economic output, and health and public safety of all Americans. The legislation would [also] protect American consumers from the deception of these foreign thieves, and ensure those that play a role in the internet ecosystem, such as advertisers, payment processors, search engines and ISPs, have shared responsibility in cutting off these sites from the American marketplace.9 Briefly, these are the steps leading to the creation of these legislations: - The first step took place in June 2010 when the U.S. Government (United States Immigration and Customs Enforcement agency and the U.S. attorney for the Southern District of New York) seized nine websites accusing them of movie piracy; these

Motion Picture Association of America, The Cost of Content Theft by the Numbers, http://www.mpaa.org/Resources/8c33fb87-1ceb-456f-9a6e-f897759b9b44.pdf (last visited April 6, 2012) and Envisional, Technical report: An Estimate of Infringing Use of the Internet 2-6 (January 2011), http://documents.envisional.com/docs/Envisional-Internet_Usage-Jan2011.pdf (last visited April 6, 2012). 8 Motion Picture Association of America, The Growing Threat of Rogue Websites, http://www.mpaa.org//Resources/4aa9036c-ea05-4ada-8bee-6dc61b21335d.pdf (last visited April 6, 2012). 9 Motion Picture of America Association, http://www.mpaa.org/contentprotection/roguewebsites (last visited April 6, 2012).

websites offered free access to movies such as "Toy Story 3."10 This operation was called "Operation In Our Sites"11, better known, today, as rogue websites. Interestingly, some of the websites were based in the United States and others in Europe.12 The conceptual framework of PIPA and SOPA were already unconsciously in place. The rogue websites constituted the corner stone of all these legislations and typically engage in one or more of the following forms of online theft of copyrighted content: o Streaming an unauthorized copy of a copyrighted video; o Downloading an unauthorized copy of a copyrighted video; o Streaming or downloading of an unauthorized copy of a copyrighted video by linking to a torrent or other metadata file that initiates piracy; o Linking to a specific offer to sell an unauthorized copy of a copyrighted video; o Hosting an unauthorized copy of a copyrighted video.13 This definition permits to better understand how SOPA and PIPA were thinking. The MPAA also insists on the steps taken by rogue websites to deceive consumers into believing they are legitimate.14 Section 102 of SOPA tries to take these steps into account: o The use of credit card companies, such as Visa and MasterCard, to facilitate payments to rogue websites. o The use of e-wallet or alternative payment methods such as PayPal, Moneybrokers, AlertPay and Gate2Shop to allow for the receipt of payment from the public for subscriptions, donations, purchases and memberships. o The use of advertising, often for mainstream, Blue Chip companies, on the websites.15
10

Alex Dobuzinskis, US authorities seize websites over pirated movies, Reuters (Wed. June 30, 2010), http://www.reuters.com/article/2010/06/30/film-piracy-idUSN308348820100630 11 National Intellectual Property Rights Coordination Center, Operation In Our Sites, http://www.ice.gov/doclib/news/library/factsheets/pdf/operation-in-our-sites.pdf (last visited April 6, 2012). 12 Michael H. Berkens, Feds Seize 9 Domains For Copyright Infringement, But Based On What Law?, The Domains (July 1, 2010), http://www.thedomains.com/2010/07/01/feds-seize-9-domains-for-copyrightinfringement-but-based-on-what-law/ 13 Motion Picture Association of America, The Growing Threat of Rogue Websites, http://www.mpaa.org//Resources/4aa9036c-ea05-4ada-8bee-6dc61b21335d.pdf (last visited April 6, 2012). 14 Id.

In the month following the seizure, the Obama Administration Agencies, Public Knowledge and some other organizations, started discussions concerning the issues of seizures of websites violating copyright law.16

The last step, as it will be discussed in the legal approach, was the introduction of the Combating Online Infringement and Counterfeits Act (COICA) on September 2010.

ii. Legal approach Senator Orrin Hatch commented the Internet is not a lawless free-for-all where anything goes. The Constitution protects both property and speech, both online and off.17 In other words, it was time to revise the Digital Millennium Copyright Act (DMCA). Indeed, this Act was considered as part of an effort "to begin updating national laws for the digital era.18 Broadly speaking, it was designed to facilitate the robust development and world-wide expansion of electronic commerce, communication, research, development and education in the digital age.19 How? By protecting Internet service providers and others with so-called "safe harbor" provisions that essentially limit a party's liability on the premise that it acted in good faith or in compliance with standards.20 Although, when the DMCA was enacted, many user-generated content and video sharing sites (Web 2.0 Websites), such as YouTube (2005), Wikipedia (2001), Twitter (2006), Tumblr (2007), etc. were not born yet. When the U.S. Government tries to pass a new bill, it is difficult, not to say impossible, to predict the future.

Recently, in a Washington Post article, Rebecca MacKinnon said politics as usual is not compatible with the Internet Age, especially when it comes to laws and regulations governing

15 16

Motion Picture Association of America, supra note 13. SOPA and PIPA: How We Got Here, YouTube (Dec. 15, 2011), http://www.youtube.com/watch?feature=player_embedded&v=9TpZJA9EIPY# 17 Draconian Anti-Piracy Censorship Bill Passes Senate Committee (PROTECT-IP Act), The Total Collapse, http://www.thetotalcollapse.com/draconian-anti-piracy-censorship-bill-passes-senate-committee-protect-ip-act/ (last visited Feb 7, 2012). 18 H.R. Rep. No. 105-551, pt. 2, at 21 (1998). 19 S. Rep. No. 105-190, at 1 (1998). 20 Post SOPA, What Is the Next Frontier for Internet Copyright Protection?, Fair Observer (Feb. 15, 2012), http://www.fairobserver.com/article/post-sopa-next-frontier-internet-copyright-protection?page=2

the web.21 This proved to be true. On September 20, 2010 Senator Patrick Leahy introduced a bill known as the Combating Online Infringement and Counterfeits Act (COICA).22 The aim of the Bill was to combat online infringement, and for other purposes.23 This is addressed by the US Attorney General who was allowed to target Internet sites dedicated to infringing activities located domestically or not (inside or outside the United States), obtaining a court-ordered injunction against the websites if they have no demonstrable, commercially significant purpose or use other than or is marketed by its operator, or by a person acting in concert with the operator, to offer () [copyrighted files without authorization].24

Unfortunately for the Chairmen Senator even if the bill passed the Senate Committee on the Judiciary - the bill never received a full vote on the Senate Floor. However, the senator Patrick Leahy did not remain unmoved. On May 12, 2011 he introduced the Protect IP Act also known as the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act,25 which is a re-write of the COICA.

The aim of this second bill was quite similar to the previous one: to prevent online threats to economic creativity and theft of intellectual property, and for other purposes. Again, there is another definition of an Internet site dedicated to infringing activities.26 The novelty resides in the section 3, dedicated to the enhancing enforcement against rogue websites operated and registered overseas. While COICA mentioned websites not located domestically, PIPA clearly qualified them as rogue websites. Readers can perceived the change mentality that made such law more restrictive.
21

Rebecca MacKinnon, Why doesnt Washington understand the Internet?, The Washington Post (Jan. 20, 2012), http://www.washingtonpost.com/opinions/why-doesnt-washington-understand-theinternet/2012/01/17/gIQAGPzWEQ_story.html 22 An Act Combating online infringement and Counterfeits, S. 3804, 111th Cong. (2010), http://www.govtrack.us/congress/billtext.xpd?bill=s111-3804 23 Id. 24 An Act Combating online infringement and Counterfeits, supra note 22. 25 An Act Preventing Real Online Threats to Economic Activity and Theft of Intellectual Property (PROTECT IP Act), S. 968, 112th Cong. (1st Sess. 2011), http://www.govtrack.us/congress/billtext.xpd?bill=s112-968 26 Id.

Then, the United States House of Representative also decided to introduce a bill to promote prosperity, creativity, entrepreneurship, and innovation by combating the theft of U.S. property, and for other purposes.27 Better known as SOPA, this bill is designed to enforce federal copyright and trademark law in the age of the Internet.28

Behind these noble bills and intentions of Washington, the reality is not that rosy. The impact on the freedom of expression and on innovative global Internet is considerable. It is also easy to spread misinformation on the Internet. Therefore, it is essential to understand what were exactly the aims of these bills and the intention of Congress, and how eventual serious damages could have been occurred.

b. The real PIPA/SOPA effect and the accuracy of the claims i. The effect of the anti-piracy Act It is not the first time that Hollywood-backed Congress tried to pass an anti-piracy Act. In fact, PIPA/SOPA was the 16th attempt.29 The main objective of SOPA was to reduce access to websites dedicated to infringing activities and foreign (infringing) Internet sites, like e.g. Megaupload.30 One of the reasons is that these websites generated an enormous amount of money and are not protected the intellectual property rights of the owners.

As the bill sponsor Smith argued at a November 16, 2012 hearing, the theft of America's intellectual property costs the U.S. economy more than $100 billion annually and results in the loss of thousands of American jobs. Under current law, rogue sites that profit from selling
27

An Act to Stop Online piracy, H.R. 3261, 112th Cong. (2010), http://www.govtrack.us/congress/billtext.xpd?bill=h112-3261 28 Floyd Abrams, Stop Online Piracy Act (Nov. 7, 2011), http://www.mpaa.org/resources/1227ef12-e209-4edfb8b8-bb4af768430c.pdf 29 Mike Masnick, How Much Is Enough? We've Passed 15 'Anti-Piracy' Laws In The Last 30 Years, http://www.techdirt.com/articles/20120215/04241517766/how-much-is-enough-weve-passed-15-anti-piracylaws-last-30-years.shtml (last visited March 6, 2012). 30 Nate Anderson, Why the feds smashed Megaupload, Ars Technica, http://arstechnica.com/techpolicy/news/2012/01/why-the-feds-smashed-megaupload.ars (last visited March 22, 2012).

pirated goods are often out of the reach of U.S. law enforcement agencies and operate without consequences. The Stop Online Piracy Act helps stop the flow of revenue to rogue websites and ensures that the profits from American innovations go to American innovators.31 However, the problem is twofold. First, people leave in a world where the digital information can be reproduced at nearly zero cost.32 Second, there are no physical locations on the Internet space and it is, as a result, difficult to apply a law for all the websites.33

ii. Accuracy of the claims SOPA and PIPA were heavily criticized on the Internet. As a result, it appears to be useful to analyze more in details what are exactly the issues in these two similar bills. For the sake of convenience, only the sections concerning copyright infringement of title I combating online piracy of SOPA34 will be discussed.35

Section 102. Action by Attorney General to protect U.S. customers and prevent U.S. support of foreign infringing sites.

The section 102 authorizes the Attorney General (AG) to seek a court order against an allegedly foreign infringing site. Broadly speaking, if granted, the court order could have serious consequences, like the denying of the site access to payment processors, advertising services and parts of the domain name system. Based on the Manager Amendments36 to SOPA, a site will be considered as an infringing site if:
31

Patrick J. Kiger, Will Anti-Piracy Legislation Lead to an Alternative Hacker-Controlled Internet?, Science discovery, http://blogs.discovery.com/good_idea/2012/01/will-anti-piracy-legislation-lead-to-an-alternativehacker-controlled-internet.html; For other articles supporting SOPA, see, e.g., Ernesto, How SOPA Could Actually Benefit File-Sharers, TorrentFreak (March 24, 2012), http://torrentfreak.com/how-sopa-could-actuallybenefit-file-sharers-120324/; Rep. Goodlatte, Goodlatte introduces legislation to protect American Jobs, Press releases http://goodlatte.house.gov/press_releases/281 (last visited March 25, 2012). 32 David G. Post, SOPA and the Future of Internet Governance, Justia.com (Feb. 13, 2012), http://verdict.justia.com/2012/02/13/sopa-and-the-future-of-internet-governance 33 Id. 34 SOPA and PIPA are particularly similar. Therefore, only the legal analysis of SOPA will be developed. However, if it is relevant, the differences between these two bills will be emphasized. 35 The provisions mentioned in this research paper are based on the managers amendments to SOPA: Amendment in the nature of a substitute to H.R. 3261 offered by Mr. Smith of Texas, http://pub.bna.com/ptcj/3261ManagersAmendment.pdf (last visited March 15, 2012). 36 Hereafter, M.A.

(1) The Internet site is a U.S.-directed site and is used by users in the United States; and (2) The Internet site is being operated in a manner that would, if it were a domestic Internet site, subject it (or its associated domain name) to (A) seizure or forfeiture in the United States in an action brought by the Attorney General, by reason of an act prohibited by section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of title 18, United States Code; or (B) prosecution by the Attorney General under section 1204 of title 17, United States Code, by reason of a violation of section 1201 of such title. This definition is already subject to criticism. Indeed, as introduced in the bill, the definition included site facilitating criminal infringement37 and by consequence, imposed an extremely low burden on the AG of showing that the site is a foreign infringing site. The managers amendments seem to delete this part of the definition. In fact, SOPA still applies to such sites.38 Although not cited in M.A. Sec. 102, the statutory provision, which enables civil forfeiture, is 18 U.S.C. 2323. This later provision allows for the forfeiture of property used, or intended to be used, in any manner or part to commit or facilitate the commission of criminal intellectual property infringement (18 U.S.C. 2323(a)(1)(B)).39 Therefore, this amended provision still concerns Internet sites that are facilitating the commission of copyright infringement. In fact, the reference to forfeiture broadens the definition through the incorporation of languages such as intended to be used and property used in any manner or part. This entails the risk that too vague and broad definition may be abuse in the future. As a result, the DMCA safe harbor defense seems to be useless. Assuming that an Internet site meets the requirements, the site operator becomes liable for copyright infringement committed by the users.

As mentioned in the definition of foreign infringing site, the power lies with the AG, rather than, for instance, the copyright holder. The AG can purse two types of action: (1) in the action against the persons owing or using the property, in personam action, SOPA
37 38

See H.R. 3261 14, lines 4-19 (as introduced). Net coalition, NetCoalitions Detailed Analysis of Managers Amendment on SOPA, http://www.netcoalition.com/wp-content/uploads/2011/08/Detailed-Analysis-of-SOPA-Managers-Amendment-v2-12-142011.pdf (last visited March 15, 2012). 39 Id.

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imposes its sanctions on the domain names used by those websites. (2) With the in rem action, by assimilating domain names to property, SOPA avoids the problem of trying to assert personal jurisdiction over the foreign actors or the foreign servers that are involved in a given dispute.40 Practically, if the AG decides to take an action against an Internet site, then a subsequent court order (M.A., Sec. 102(c)(1)) would require the following 4 steps: - Firstly, a service provider shall be required to prevent access by its subscribers to the site and this, as expeditiously as possible41 (M.A., Sec. 102(c)(2)(A)(i)). The second paragraph, safe harbor, describes that the obligation of the service provider to take reasonable measures is fully satisf[ied] by measures designed to prevent a non authoritative domain name system server under the direct control of the service provider from resolving the domain name of the foreign infringing site to that domain names Internet Protocol address.42 In other words, SOPA requires website blocking and imposes new responsibilities on Internet Service Providers to scrutinize and screen all user traffic.43 This obligation of prevent access is also similar to that of a Pennsylvania Statute overturned on constitutional grounds in CDT v. Pappert.44 - Secondly, search engines45 (e.g. Google, Bing, Yahoo!, etc.) shall take measures designed to prevent the serving of a direct hypertext link to the foreign infringing site (M.A., Sec. 102(c)(2)(B)).46 This provision seems to have exactly the same purpose

40 41

David G. Post, supra note 32. As introduced, the bill included a clarification for the expeditiously as possible requirement by adding in any case within 5 days after being served with a copy of the order, or within such time as the court may order (see H.R. 3261 14, lines 6-10). The amended bill is now in conformity with the DMCA-Standard. For a critic about this standard, see, e.g., Debra Weinstein, Note and Recent Development, Defining Expeditious: Uncharted Territory of the DMCA Safe Harbor Provision a Survey of What We Know and Do Not Know About the Expeditiousness of Service Provider Responses to Takedown Notifications 603, (Cardozo Arts & Entertainment, Vol. 26:589, L.J. 589 (2008)). 42 Amendment in the nature of a substitute to H.R. 3261 offered by Mr. Smith of Texas 15, lines 16-21. 43 Center for democracy and technology, The Stop Online Piracy Act: Summary, Problems and Implications, CDT (Nov. 15, 2011), https://www.cdt.org/paper/sopa-summary 44 Id. 45 The amendments definition is slightly different from the introduced bill. It defines a search engine to be a service made available via the Internet whose primary function is gathering and reporting, in response to a user query, indexed information or Web sites available elsewhere on the Internet; see Amendment in the nature of a substitute to H.R. 3261 offered by Mr. Smith of Texas 7, lines 1-5. 46 See Amendment in the nature of a substitute to H.R. 3261 offered by Mr. Smith of Texas 18, lines 7-14.

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and meaning as the existing framework of the DMCA47 (see 17 U.S.C. 512(d)) and therefore creates confusion and uncertainty on the applicable law for search engines. - Thirdly, the payment network providers48 (e.g. PayPal, WebMoney, Moneybookers, etc.) shall be require to terminate service to the Internet site (M.A., Sec. 102(c)(2)(C)). - Finally, the Internet advertising service49 will be required to stop providing an advertising service to the Internet site (M.A., Sec. 102(c)(2)(D)).

In sum, this section gives the power to the AG to block Internet Web site and offers him a new in rem jurisdictional theory to provide U.S. courts with jurisdiction over foreign sites that are, among other things, available to users in the United States.50 This section also creates confusion by interfering with the DMCA safe harbor and threatens the ongoing success of the U.S. Internet industry, which is one of the most successful and fastest growing sectors of the United States economy.51 This confusion is also present in the M.A. Sec. 103. Some commentators argued that SOPA was clear enough. The bill stipulated nothing in [section 102] shall affect the limitation on the liability of a service provider under section 512 of title 17, United States Code (M.A., Sec. 102(c)(2)(A)(iv)). However, in practice, things could be different. As it will be developed hereafter, SOPA has the potential to effectively usurp the DMCA safe harbor in important respects. If the bill is enacted, online service providers will face a new worst nightmare: being cut off from payment processors, ad networks, and possibly even Internet service providers.52 On the other hand, the fact that the bill encompasses vague and broad definitions, it is hard to predict how SOPA would impact
47

Ian C. Ballon, DMCA liability limitations for social networks, blogs, websites, and other service providers and the UGC, http://www.ianballon.net/linked/dmcaexcerptwithwhitedoutcover.pdf (last visited March 19, 2012). 48 This term means an entity that directly or indirectly provides the proprietary services, infrastructure, and software to effect or facilitate a debit, credit, or other payment transaction, see Amendment in the nature of a substitute to H.R. 3261 offered by Mr. Smith of Texas 8, lines 15-20. 49 The term means a service that for compensation sells, purchases, brokers, serves, inserts, verifies, or clears the placement of an advertisement, including a paid or sponsored search result, link, or placement, that is rendered in viewable form for any period of time on an Internet site, see Amendment in the nature of a substitute to H.R. 3261 offered by Mr. Smith of Texas 5, lines 21-25; 6, lines 1-3. 50 Markham C. Erickson, H.R. 3261, Stop Online Piracy Act (SOPA) Explanation of Bill and Summary of Concerns, Net Colation, http://www.net-coalition.com/wp-content/uploads/2011/08/NC-Analysis-of-H-R-3261_-Nov-15.pdf (last visited March 19, 2012). 51 Id. 52 Ryan Radia, Why SOPA threatens the DMCA safe harbor, (Nov. 18, 2011), http://techliberation.com/2011/11/18/why-sopa-threatens-the-dmca-safe-harbor/

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the service providers and how Federal judges will interpret the bill. As mentioned before, the DMCA continues today to engender serious disagreement among federal courts.53

To conclude, blocking domain name beyond the borders is certainly not a suitable alternative to online piracy. As a consequence, a few weeks after the Congress proposed the Act, the European Parliament adopted a resolution that criticizes domain name seizures of infringing websites by US authorities.54 [It] stresses the need to protect the integrity of the global Internet and freedom of communication by refraining from unilateral measures to revoke IP addresses or domain names.55 This eventual worldwide blocking ability that SOPA could give to the United States can affect companies in EU member states56 with .com, .org or .net domains, but also in the rest of the World. As 60 press freedom and human rights advocate groups put it in their letter, this is as unacceptable to the international community as it would be if a foreign country were to impose similar measures on the United States.57 Only a transparent, international and democratic treaty in respect of freedom of expression should consider this matter.

Section 103. Protection of U.S. customers and prevention of U.S. funding of sites dedicated to theft of U.S. property.

This section was probably the most controversial one and was subject to a lot of criticism by the newspaper commentators and Internet users. One of the reasons was that the definition of sites dedicated to theft of U.S. property could target sites like Facebook (800 Million

53 54

Id. Ernesto, EU Adopts Resolution Against US Domain Seizures, TorrentFreak (Nov. 17, 2011), http://torrentfreak.com/eu-adopts-resolution-against-us-domains-seziures-111117/ 55 European Parliament resolution on the EU-US Summit of 28 November 2011, http://www.europarl.europa.eu/sides/getDoc.do?type=MOTION&reference=P7-RC-2011-0577&language=EN 56 It shall be noted that a targeting blocking, as long as it remains fair, proportionate and not excessively costly, is allowed by the courts in Europe: see Case C-70/10, Scarlet v. SABAM, 2011 InfoCuria - Case-law of the Court of Justice, http://curia.europa.eu/juris/document/document.jsf?docid=115202&doclang=EN&mode=&part=1 57 https://s3.amazonaws.com/access.3cdn.net/0f3a84cf371bee7598_rsm6bxi0v.pdf mentioned by Ernesto, EU Adopts Resolution Against US Domain Seizures, TorrentFreak (Nov. 17, 2011), http://torrentfreak.com/euadopts-resolution-against-us-domains-seziures-111117/

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users58), Wikipedia (with currently 3,900,014 articles59), Twitter (140 Million users60), Dropbox (45 Million users61) and YouTube, which had in 2011 more than 1 trillion views globally.62 Under this definition63, an Internet site is an Internet site dedicated to theft of U.S. property if any of the following conditions are met: (A) it is (i) a U.S.-directed site; or (ii) an Internet site for which the registrant of the domain name used by the Internet site, and the owner or operator of the Internet site, are not located and cannot be found within the United States; (B) the site is used by users within the United States; and (C) either (i) the site is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator primarily for use in, offering goods or services in violation of (I) section 501 of title 17, United States Code, [copyright infringement] for purposes of commercial advantage or private financial gain, and with respect to infringement of complete or substantially complete works; (II) section 1201 of title 17, United States Code [circumvention of copyright protection systems]; or (III) provisions of the Lanham Act that prohibit the sale, distribution, or promotion of goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Lanham Act (15 U.S.C. 1116(d)) or section 2320 of title 18, United States Code [Trademark infringement]; or (ii) the operator of the site operates the site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation of section 501 or 1201 of title 17, United States Code, [Copyright infringement or the circumvention of copyright protection systems] as shown by clear expression or other affirmative steps taken to foster such violation. Some clarifications are needed: - Firstly, the managers amendment has removed references to a portion thereof of the U.S.-directed site (M.A., Sec. 103(a)(1)(A)(i)) included in the introduced bill. However, a single page of an Internet site can still be the object of the sanction. Indeed, the M.A. changed the definition of Internet site by stating that the term
58

Bianca Bosker, Facebook IPO Filing Reveals Its Stunning Size: A Private Jet, $1 Billion In Profits, And More, HuffpostTech (Feb. 01, 2012), http://www.huffingtonpost.com/2012/02/01/facebook-ipo-filingrevea_n_1248434.html 59 http://en.wikipedia.org/wiki/Main_Page (last visited March 19, 2012). 60 Todd Wasserman, Twitter Says It Has 140 Million Users, Mashable (March 21, 2012), http://mashable.com/2012/03/21/twitter-has-140-million-users/ 61 Robin Wauters, Dropbox Raises $250M In Funding, Boasts 45 Million Users, TechCrunch (Oct. 18, 2011), http://techcrunch.com/2011/10/18/dropbox-raises-250m-in-funding-boasts-45-million-users/ 62 http://www.youtube.com/t/press_statistics (last visited March 19, 2012). Another intriguing fact concerning SOPA is that 70% of YouTube traffic comes from outside the U.S. 63 Amendment in the nature of a substitute to H.R. 3261 offered by Mr. Smith of Texas 26, lines 9-25; 27-28, lines 1-9.

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Internet site may include a specifically identified portion of such site.64 As a result, the portion of such site is now included in every reference to an internet site65 and no guidelines are provided on how to resolve a case when the only way to take an action against the infringing portion is to take action against the website as a whole.66 In practice, a social networking site (e.g. Facebook) or a free encyclopedia web page (e.g. Wikipedia) could be targeted as a site dedicated to the theft of U.S. property if it contains infringing content. - Secondly, the definition is devised in three parts:

(1) U.S. directed site and sites not located in the United States (foreign sites). With the consequence that a site operated by a U.S. company with a domain name registered to a foreign country code top level (e.g. YouTube.be [Belgium]) domain is a foreign Internet site.67 (2) Site that is used by users in the United States. (3) Then, a two-pronged-definition. The first prong definition focusing on the Internet site seems, again, very similar to the language of the DMCA anti-circumvention provision. As Rob Pegoraro observed in a Roll Call op-Ed, limited is one of those wonderfully elastic words notice the ever-longer yet still limited copyright terms granted to artists and creators?.68 As suggested by a Ryan Radia, this section of SOPA would be more clear if it relied on the capable of substantial non-infringing uses test originally articulated by the U.S. Supreme Court in its famous 1984 Betamax opinion, Sony Corp. v. Universal City Studios, which has since been interpreted by numerous federal courts in

64 65

Amendment in the nature of a substitute to H.R. 3261 offered by Mr. Smith of Texas 7, lines 17-19. The M.A., Sec. 104(a) explains how the order of such an action needs to be concise to that portion. 66 Net coalition, supra note 38. 67 See the analysis of the definition: Sites that are dedicated to the theft of U.S. property are defined to include a U.S. directed site, see Amendment 26, line 17, which is limited to certain foreign Internet sites, see Amendment 9, line 19, which are in turn defined to be sites that are not domestic Internet sites, see Amendment 5, line 8. Domestic Internet sites are sites that have a domestic IP address or domain name. See Amendment 4, lines 18-23. A domestic domain name is one where the registration authority is within a judicial district of the United States. See Amendment 4, lines 8-10: Net coalition, supra note 38. 68 Rob Pegoraro, Pegoraro: Online Piracy Act Is Copyright Overreach, Roll Call (Nov. 17, 2011), http://www.rollcall.com/issues/57_61/rob_pegoraro_online_piracy_act_copyright_overreach-210392-1.html

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copyright infringement cases.69 Again, intentionally or not, this bill encompasses too broad of a definition. The second prong of the definition focuses on the operator of the site. The trademark infringement is not a hypothesis in this case. - Thirdly, a Qualifying Plaintiff70 (or rights holders) can bring an in personam or in rem civil action against a site dedicated to the theft of U.S. property. Another action against payment service providers and Internet advertising services is also available for the Qualifying Plaintiff. The procedure is quite similar to the section 102, with all the negative consequences attached to it, in particular the fact that these actions are taken without any prior judicial determination of infringement.71 - Fourthly, the definition also does not distinguish between sites with a high probability of episodic or occasional uses for infringement and sites that are most likely used largely for infringement.72 - Finally, while section 102 included a provision stating SOPA will not affect the DMCA safe harbor provisions for foreign websites, no such savings clause appears in the section 103, which encompasses domestic websites as well.

In conclusion, this section is going to far in its attempt to stop online copyright infringement. While the SOPAs vagueness may be seen by some commentators as an appropriate phenomenon, Robert Bork correctly stated that [People] should be very worried whenever the Congress is pondering vague, open-ended statutes, particularly when they implicate the fast moving world of technology.73 If Congress wanted to amend the DMCA to strike a better balance between the competing interests of the different stakeholders (end users,
69 70

Ryan Radia, supra note 52. Amendment 28, lines 6-9. 71 Tyler G. Newby and Mitchell Zimmerman, SOPA and PIPA deconstructedthe meaning of key provisions of the controversial anti-piracy legislation, AIPLA (March 30, 2012), http://www.lexology.com/library/detail.aspx?g=5a67ee45-0c33-4a6f-98828a3121ca48a1&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body++Federal+section&utm_campaign=Aipla+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+20 12-04-11&utm_term= 72 Id. 73 Ryan Radia, supra note 52.

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copyright owners and website operators), the proper would be to reform the DMCA itself rather than circumvent this balance via SOPA. Indeed, the [DMCA] promotes an innovation without having to ask permission environment that has made the U.S. Internet sector the most successful sector in the world. This is due in no small part because of the balanced legal framework Congress created at the start of the commercial Internet. Venture capitalists and other investors know that they will have certainty that a website that allows user-generated content will not be in legal jeopardy as it satisfies the safe harbor conditions in the DMCA. Unfortunately, a site that enjoys the DMCA safe harbor could nonetheless be targeted by termination notice and held liable under SOPA. That is because the new liabilities created by SOPA do not have an exception that protects lawful U.S. sites that are compliant with the DMCAs notice-and-takedown requirements.74

c. A temporary suspension? As it will be discussed hereafter, on January 18, 2012 the Internet experienced the largest strike in history to stop PIPA and SOPA. Two days after, on January 20, Congress shelved the votes on the anti-piracy bills. Just like the bills were proposed, Senate Majority leader Harry Reid firstly announced the postponement of PIPA. A couple of hours after, Lamar Smith, the Republican chairman of the House Judiciary committee, followed suit, saying that he would delay action on SOPA until there is a wider agreement.75

Now the question remains: is a bill the best solution against online piracy/copyright infringement? Is the United States Congress capable of creating a remedy that will cure this worldwide disease? If so, what is the solution? Without offending Congress efforts, offering

74 75

Net coalition, supra note 38. SOPA bill shelved after global protests from Google, Wikipedia and others, Washington Post (Jan. 20, 2012), http://www.washingtonpost.com/business/economy/sopa-bill-shelved-after-global-protests-from-googlewikipedia-and-others/2012/01/20/gIQAN5JdEQ_story.html and Timothy B. Lee, Internet wins: SOPA and PIPA both shelved, Ars technical, http://arstechnica.com/tech-policy/news/2012/01/internet-wins-sopa-and-pipa-bothshelved.ars (last visited March 7, 2012).

17

the copyright content on the Internet and in the real world at the same time appears to be the only solution.

Broadly speaking, copyrighted works on the Internet are mainly books, songs and movies. The latter is the only one that is not convenient for legal online consumption. In the last 10 years, in the music industry, things have changed with the growth of legal websites. The last example in the United States, Spotify, is the kind of software that the movie industry should make, instead of protesting against online piracy. Although the US service was launched in July 2011, the success of Spotify became more powerful at the end of September 2011 when Facebook announced at its F8 conference, the integration in his social media of what can become the World's Best Music Service. The idea is not entirely new because similar services such as Mflow, Grooveshark, Deezer or MySpace Music already existed before. However, none of them can compete with the quantity, quality and diversity of music on Spotify. How is it exactly working? It is remarkably easy. An Internet user has to download the software on the website and with your Facebook account, it will take only a few seconds to access to this incredible music-streaming service. With some advertisements to remunerate the artists, it is a totally new way of enjoying the music without paying. With its piracy is so old fashioned announcement, Spotify clearly tries to educate people to listen to music in a different way, in a way that does not prejudice the artists and musicians.

What about the book industry? Without taking into account the past issues that Google dealt with in the case of Google Books, the book services on the Internet are really affordable and do not encourage piracy.

The movie industry is certainly not comparable to the 500 legitimate music services in 78 countries.76 The question remains why? In a video, Fred Wilson explained the current
76

For a complete list, see http://www.ifpi.org/content/library/DMR2012.pdf (last visited March 7, 2012).

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situation: () When 99 percent of the citizens of the world are breaking the law, the question is, is this the right law? Everybody is a pirate. Everybody is a pirate. () It is hard not to be a pirate in this world. When I talk to my kids about this, they cannot imagine a world where the content sites that they use arent available because that is how they get the content. () Weve got to fix the system so that the content is available legally on the Internet in a way that is convenient for people to consume it. As convenient as turning on your TV and watching HBO. Thats how convenient it has to be. The content industry has not made this content convenient to access on the Internet and as a result everybody and I mean everybody is a pirate77 Wilson said.

In conclusion, as long as the Congress will try to pass Internet censorship bills like PIPA and SOPA, the current situation will remain the same. Based on the significant facts with the music industry, it is time to allow the Internet users to have access to the content they pirated on the Internet, most principally movies, at reasonable price, instead of creating antidemocratic-piracy bills. For instance, the Netherlands and Switzerland,78 when dealing with downloading music and movies, represent a real example of democracy where lobbying are not part of the legal discussion. In the Swiss report, the overall suggestion the Swiss government communicates to the entertainment industries is that they should adapt to the change in consumer behavior, or die. They see absolutely no need to change the law because downloading has no proven negative impact on the production of national culture.79 The same conclusion that downloading music and movie have to stay legal was adopted in the Dutch Parliament.80 Today, even if SOPA and PIPA are only shelved, the probability to see these bills reintroduced is small, not to say impossible. The future is in another bill, perhaps the OPEN Act.
77

Media Council, Protecting Content and Promoting Innovation in a Digital World: A Post-SOPA/PIPA Conversation, February 14, 2012, http://www.paleycenter.org/mc-breakfast-post-sopa-pipa-dialogue 78 Der Bundesrat, Urheberrechtsverletzungen im Internet: Der bestehende rechtliche Rahmen gengt (Nov. 30, 2011), http://www.ejpd.admin.ch/content/ejpd/de/home/dokumentation/mi/2011/2011-11-30.html 79 Enigmax & Ernesto, Swiss Govt: Downloading Movies and Music Will Stay Legal (Dec. 2, 2011), http://torrentfreak.com/swiss-govt-downloading-movies-and-music-will-stay-legal-111202/ 80 Id.

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2. Online Protection and Enforcement of Digital Trade (OPEN Act) a. Introduction The creation of a digital copyright legislation is extremely hard these days, especially since the Internet blackout of January 18, 2012 in reaction to the controversial bills SOPA and PIPA. As an interesting fact, the Open Act81 was introduced by Rep. Darrell Issa (RCalifornia) in the U.S. House of Representatives on the same day as the World Internet protest. The aim of the Act is to to amend the Tariff Act of 1930 to address unfair trade practices relating to infringement of copyrights and trademarks by certain Internet sites, and for other purposes.82 What is exactly the content of this bill and how it differs from PIPA and SOPA will be analyzed hereafter.

b. Comparison between SOPA, PIPA and the OPEN Act i. Similarities between the acts The comparison between SOPA, PIPA and the OPEN Act is essential because all these three bills attempt to address the problem of foreign websites, better known as rogue websites, that are offering either copyright or trademark content by placing new law enforcement responsibilities on U.S. intermediaries. These bills also involve a three-step process, but the details of the OPEN Act vary significantly from SOPA and PIPA. The steps can be described as follow: - Firstly, there is a proceeding against an Internet website or domain name. The OPEN Act will apply only to foreign websites that willfully promote copyright infringement.83 - Secondly, if a website is found to be rogue, the order to terminate the service will be served on a U.S. intermediary. -
81

Finally, if the U.S. intermediary does not comply, there is an enforcement process.

An Act for online protection and digital trade, H.R. 3782, 112th Cong. (2012), http://www.gpo.gov/fdsys/pkg/BILLS-112hr3782ih/pdf/BILLS-112hr3782ih.pdf 82 Id. 83 Winthrop & Weinstine, P.A, Is The Open Act The Answer To Online Piracy?, JDSUPRA (Feb. 23, 2012), http://www.jdsupra.com/post/documentViewer.aspx?fid=07b2f5db-90c6-4e16-bab2-c3ae1439e26d

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In practice, the procedures change regarding the three bills. ii. Differences between the acts - Who can instigate proceedings against foreign Internet sites?

As developed before in SOPA, two different actions can be initiated. On the one hand, the Attorney General can bring an action (in rem or in personam) in federal court. Then, three categories of intermediaries must take an action in response to order: search engines, payment systems and advertising networks. On the other hand, a private right action can be taking by the qualifying plaintiff. Here, the intermediaries can take only two actions regarding the payment system and advertising networks. The provision is similar under PIPA. In the OPEN Act, it is the United States International Trade Commission (ITC) that instigates proceedings against Internet site dedicated to infringing activity.84 The bill defines it as follows: (A) IN GENERAL---The term Internet site dedicated to infringing activity means an Internet site that (i) is accessed through a non-domestic domain name; (ii) conducts business directed to residents of the United States; and (iii) has only limited purpose or use other than engaging in infringing activity and whose owner or operator primarily uses the site to (I) to willfully (aa) infringe a copyright in a manner punishable under section 506 of title 17, [Criminal offenses] United States Code; or (bb) violate section 1201 of title 17, United States Code [circumvention of copyright protection system]; or (II) to use counterfeit marks in a manner punishable under section 34(d) of the Lanham Act (15 U.S.C.1116(d)) (B) BUSINESS DIRECTED TO RESIDENTS OF THE UNITED STATES. For purposes of determining whether an Internet site conducts business directed to residents of the United States under subparagraph (A)(ii), the Commission may consider, among other indicators, whether (i) the Internet site is providing goods or services to users located in the United States; (ii) there is evidence that the Internet site is not intended to provide goods and services to such users or access to or delivery of goods and services to such users; (iii) the Internet site has reasonable measures in place to prevent goods and services provided by the Internet site from being accessed from or delivered to the United States; (iv) the Internet site offers services obtained in the United States; and (v) any prices for goods and services provided by the Internet site are indicated in the currency of the United States.
84

H.R. 3782 4, lines 14-25; 5, lines 1-10.

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(C) EXCLUSIONS. An Internet site is not an Internet site dedicated to infringing activity (i) if the Internet site has a practice of expeditiously removing, or disabling access to, material that is claimed to be infringing or to be the subject of infringing activity after notification by the owner of the copyright or trademark alleged to be infringed or its authorized representative; (ii) because the Internet site engages in an activity that would not make the operator liable for monetary relief for infringing the copyright under section 512 of title 17, United States Code; or (iii) because of the distribution by the Internet site of copies that were made without infringing a copyright or trade mark. After the filing of the complaints to the U.S. International Trade Commission, and based on the information the rights holders should provide to initiate an investigation, the ITC will investigate the complaints and decide whether U.S. payment processors and online advertising networks should be required to cut off funding.85 Accordingly, only two categories of intermediaries play a role in this step. Moreover, there is no private right of action. Additional comments can be added: - As already mentioned, PIPA and SOPA would enable content owners to take down an entire website, even if just one page on it carried infringing content. They also imposed sanctions after accusations -- not requiring a conviction.86 - On the contrary to SOPA and PIPA, the OPEN Act received support from Google, Twitter, Facebook and LinkedIn. Nowadays, the power and influence of these websites should not be taken lightly. - The OPEN Act is available on the Internet for a democratic discussion. Internet users are free to drop and add provisions and express their positions and/or concerns about various issues. This situation was not considered with SOPA and PIPA.

85

Grant Gross, SOPA Alternative Bill Introduced in the U.S. House of Representatives, PC World (Jan. 18, 2012), http://www.pcworld.com/businesscenter/article/248389/sopa_alternative_bill_introduced_in_the_us_house_of_r epresentatives.html?tk=rel_news 86 Christina DesMarais, SOPA, PIPA Stalled: Meet the OPEN Act (Jan. 21, 2012), http://www.pcworld.com/article/248525/sopa_pipa_stalled_meet_the_open_act.html#tk.mod_stln

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With PIPA and SOPA, there are also some concerns about the impact on online freedom of speech and freedom of expression and, consequently, a violation of the First Amendment.87 These concerns are not present in the OPEN Act.

c. Conclusion This new bill appears to be a decent middle ground for curbing online piracy while PIPA and SOPA were more concerned with over-reaching solutions.88 Even if some small concerns are present, the OPEN Act seems to have realized the problems of these two predecessors and the difficulties of creating legal solutions in the Internet world.

87

For some comments about the impact on the first amendment, see Jerry Brito, Congress's Piracy Blacklist Plan: A Cure Worse than the Disease? (Nov. 7, 2011), http://techland.time.com/2011/11/07/congresss-piracyblacklist-plan-a-cure-worse-than-the-disease/#ixzz1eG1bPxLM; Cynthia Wong, US Piracy Law Could Threaten Human Rights (Nov. 18, 2011), https://www.cdt.org/blogs/cynthia-wong/1811us-piracy-law-could-threatenhuman-rights; Carr David, The Danger of an Attack on Piracy Online, The New York Times (Jan. 1, 2012), http://www.nytimes.com/2012/01/02/business/media/the-danger-of-an-attack-on-piracy-online.html?_r=1 88 Grant Gross, supra note 85.

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3. The Cyber Intelligence Sharing and Protection Act (CISPA)

While the OPEN Act appeared to be a decent compromise after the current failure of SOPA and PIPA, The Hill is now discussing a new method to prevent cyber-attacks.89 The H.R. 352390, better known as Cyber Intelligence Sharing and Protection Act (CISPA), was introduced by Rep. Mike Rogers in the House of Representatives in November last year. The aim of the bill is to provide for the sharing of certain cyber threat intelligence and cyber threat information between the intelligence community and cybersecurity entities, and for other purposes.91 The medias already see CISPA as the new SOPA Bill, worse and with the same (assumed?) idea of censoring the web.92 CISPA does nothing of the sort, and aims more at cyber threat intelligence gathering than censorship and piracy prevention.93 However, the bill has twice the support SOPA ever had with 106 co-sponsors.94 Nevertheless, this bill is not without fundamental issues. - Firstly, some argue that unlike SOPA and PIPA, CISPA is all about collecting and sharing cyber threat intelligence and has less to do with copyright infringement concerns.95 This is not totally true. The definitions cyber threat intelligence96 and

89

Anne Sewell, Move over SOPA & PIPA: Here comes CISPA Internet censorship, Digital Journal (April 4, 2012), http://www.digitaljournal.com/article/322396#ixzz1rC3AMtCF; David Banks, CISPA- the new SOPA, Cyborgology (April 6, 2012), http://thesocietypages.org/cyborgology/2012/04/05/cispa-the-new-sopa/ 90 An Act for Cyber Intelligence Sharing and Protection Act of 2011, H.R. 3523, 112th Cong. (2011-2012), http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.3523 91 Id. 92 Worse than SOPA? CISPA to censor Web in name of cybersecurity, YouTube, April 4, 2012, http://www.youtube.com/watch?v=6rVV5tFCuqo; Anonymous - CISPA Worse than SOPA, YouTube, April 4, 2012, http://www.youtube.com/watch?v=uREYgaf2ZJE&feature=youtu.be 93 Stephen C. Webster, Sequel to SOPA could see NSA spy on journalists, media pirates, The Raw Story (April 5, 2012), http://www.rawstory.com/rs/2012/04/05/sequel-to-sopa-would-see-nsa-spy-on-journalists-mediapirates/ 94 Andrew Couts, Watch out, Washington: CISPA replaces SOPA as Internets Enemy No. 1, Digital Trend (April 5, 2012), http://www.digitaltrends.com/web/watch-out-washington-cispa-replaces-sopa-as-internetsenemy-no-1/ ; for a complete list of companies and groups (like Facebook and IBM) that support CISPA, see http://intelligence.house.gov/bill/cyber-intelligence-sharing-and-protection-act-2011 95 David Banks, supra note 89. 96 H.R. 3523, sec. 2(f)(2).

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cyber threat information97 use vague terms, like SOPA and PIPA, which are not specified in the bill. One of these terms is intellectual property. For instance, cyber threat information is defined as the following: Information directly pertaining to a vulnerability of, or threat to a system or network of a government or private entity, including information pertaining to the protection of a system or network from (A) efforts to degrade, disrupt, or destroy such system or network; or (B) theft or misappropriation of private or government information, intellectual property, or personally identifiable information (emphasis added). As a consequence, the bill would empower the NSA [National Security Agency] to spy on the whole world in search of individuals engaging in distribution of protected media, like Internet streams of television channels or peer-to-peer networks sharing multimedia files.98

Secondly, like SOPA and PIPA, the vague and broad language is another issue that possibly will be interpreted in ways that could infringe on our civil liberties.99

The Center for Democracy and Technology (CDT) summed up the situation: The bill has a very broad, almost unlimited definition of the information that can be shared with government agencies notwithstanding privacy and other laws; the bill is likely to lead to expansion of the governments role in the monitoring of private communications as a result of this sharing; it is likely to shift control of government cybersecurity efforts from civilian agencies to the military; Once the information is shared with the government, it wouldnt have to be used for cybesecurity, but could instead be used for any purpose that is not specifically prohibited.100

97 98

H.R. 3523, sec. 2(f)(6). Stephen C. Webster, supra note 93. 99 Andrew Couts, supra note 94. 100 Greg Nojeim, Cyber Intelligence Bill Threatens Privacy and Civilian Control, CDT (Dec. 1, 2011), https://www.cdt.org/blogs/greg-nojeim/112cyber-intelligence-bill-threatens-privacy-and-civilian-control

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Finally, based on the concerns of the CDT, there is a violation of a fundamental right to online privacy.101

In conclusion, it is difficult to predict how the bill will be interpreted. While CISPA was not primarily focus on Intellectual property law, but more as an amendment of the National Security Act of 1947,102 the inclusion of intellectual property in the bill [probably] means that companies and the government would have new powers to monitor and censor communications for copyright infringement.103

101

Even worse than SOPA: New CISPA cybersecurity bill will censor the Web, RT (April 4, 2012), http://rt.com/usa/news/cispa-bill-sopa-internet-175/ 102 An Act for Cyber Intelligence Sharing and Protection Act of 2011, supra note 90. 103 Andrew Couts, supra note 94.

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4. ACTA, temporarily dead? a. Introduction Since October 2007, 39 countries (Australia, Canada, the European Union and its 27 Member States, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States104) are secretly negotiated this Anti-Counterfeiting Trade Agreement (ACTA).105 Disguised as a trade agreement, its goal is to establish an international legal framework for targeting counterfeit goods, generic medicines and copyright infringement on the Internet.106 More globally, it is an international trade agreement that will help countries work together to tackle more effectively large-scale Intellectual Property Rights violations.107 In fact, it is another offensive against the sharing of the culture on the Internet.108

Currently, ACTA can only be killed by the Europe Union (EU). Indeed, in the rest of the world, Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea and the United States have signed ACTA.109 Things are more difficult with ratification in Europe. Within the EU institutional process, European Commission which held the executive power of the EU - has already passed ACTA to national governments for ratification. Before the Treaty may be adopted, both European legislative authorities, the Council of the European Union and the European Parliament, need to consent to ACTA. The Council of European

104

For a comment on the implementation of ACTA in the United States, see Khaliunaa Garamgaibaatar, The Anti-counterfeiting trade agreement: copyrights, intermediaries, and digital pirates, 20 CommLaw Conspectus 199 (2011); Margot E. Kaminski, An overview and the revolution of the anti-counterfeiting trade agreement, 21 Alb. L.J. Sci. & Tech. 385 (2011); Susan K. Sell, Trips was never enough: vertical forum shifting, FTAS, ACTA, and TPP, 18 J. Intell. Prop. L. 447 (2011); Henning Grosse Ruse-khan, The International law relation between Trips and subsequent Tripsplus free trade agreements: towards safeguarding Trips flexibilities, 18 J. Intell. Prop. L. 325 (2011) and BASCAP, ACTA in the EU - A Practical Analysis (Feb. 2012), http://www.iccwbo.org/uploadedFiles/BASCAP/Pages/ACTA_2012(1).pdf 105 http://trade.ec.europa.eu/doclib/docs/2011/may/tradoc_147937.pdf (last visited February 1, 2012). 106 Heryzo, ACTA: Broader That SOPA, But Yet As Concerning, Feb. 24, 2012, http://www.how-to-hideip.info/2012/02/24/acta-broader-that-sopa-but-yet-as-concerning/ 107 ACTA - Anti-counterfeiting Trade Agreement, Europa (April 5, 2012), http://ec.europa.eu/trade/tacklingunfair-trade/acta/; European Commission, What is ACTA about, http://trade.ec.europa.eu/doclib/docs/2012/january/tradoc_149003.pdf (last visited, April 5, 2012). 108 ACTA, La quadrature du Net, http://www.laquadrature.net/en/ACTA (last visited, April 5, 2012). 109 Will ACTA Be Killed in the EU? (Sept. 30, 2011), http://www.laquadrature.net/en/will-acta-be-killed-in-theeu

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Union had unanimously approved ACTA last December110 and authorized Member States to sign it.111 Twenty-two (22) EU member states signed the treaty on January 26, 2012 in Tokyo, but all twenty-seven (27) must sign ACTA. However, in February, Poland suspended the ratification and announced the process will not be renewed until the end of 2012.112 Couple of days later, Slovenian Ambassador apologized in public for her signature on the agreement.113 Then, just like dominos, Prime Minister of Czech Republic announced he will follow Poland and suspend ratification of ACTA.114 The same situation occurred in Slovakia,115 Latvia116 and Slovenia.117 This put the whole agreement in doubt. In sum, Germany,118 Poland, Slovenia, Bulgaria, Slovakia, Latvia, Estonia, Cyprus, the Czech Republic and the Netherlands are now opposed to ACTA. Mexico and Switzerland have not yet signed but have participated in negotiations about the treaty.119

In January 2012, the European Parliament started working on it and it is come to a close. Despites a lot of comments120 and protestations,121 numerous issues122 are still included in this secret agreement. For the sake of convenience, we will only focus on 3 of them, namely the
110

ACTA Adopted By EU Governments, Now in EU Parliament's Hands (Dec. 14, 2011), https://www.laquadrature.net/en/acta-adopted-by-eu-governments-now-in-eu-parliaments-hands 111 Statement by Commissioner Karel De Gucht on ACTA (Anti-Counterfeiting Trade Agreement) (Feb. 22, 2012), http://trade.ec.europa.eu/doclib/press/index.cfm?id=778 112 Poland suspends ACTA ratification, Warsaw Business Journal (Feb. 6, 2012), http://www.wbj.pl/article57880-poland-suspends-acta-ratification.html 113 Helena Drnovek Zorko, Why I signed ACTA, http://metinalista.si/why-i-signed-acta/ (last visited March 26, 2012). 114 Nate Anderson, Czech, Slovak governments backing away from ACTA, too, Ars Technica, http://arstechnica.com/tech-policy/news/2012/02/czech-slovak-governments-backing-away-from-acta-too.ars (last visited March 26, 2012). 115 Id. 116 Mike Masnick, Latvia Joins Countries Putting The Brakes On ACTA Approval, Techdirt (Feb. 9, 2012), http://www.techdirt.com/articles/20120209/13525017717/latvia-joins-countries-putting-brakes-actaapproval.shtml 117 Slovenia freezes ACTA ratification (March 15, 2012), http://news.yahoo.com/slovenia-freezes-actaratification-172718813.html 118 Karan Chopra, Germany Holds-Off Signing ACTA Until EU Parliamentary Decision (Feb. 11, 2012), http://i2mag.com/germany-holds-off-signing-acta-until-eu-parliamentary-decision/ 119 Kristina Chew, ACTA Approval Postponed For Now: Does the Treaty Violate EU Rights? (Feb. 25, 2012), http://www.care2.com/causes/acta-approval-postponed-for-now-does-the-treaty-violate-eurights.html#ixzz1oXePJxTv 120 How to act against ACTA, http://www.laquadrature.net/wiki/Attack_ACTA (last visited April 5, 2012). 121 Against ACTA, http://www.laquadrature.net/wiki/Against_ACTA#Amnesty_International__February_2012_-_ACTA_impacts_in_a_number_of_way_human_rights (last visited, April 5, 2012). 122 See Debunking the EU Commission's Lies About ACTA, La Quadrature du Net (Jan. 30, 2012), http://www.laquadrature.net/en/debunking-the-eu-commissions-lies-about-acta; ACTA: Updated Analysis of the Final Version, La Quadrature du Net (Dec. 9, 2010), http://www.laquadrature.net/en/acta-updated-analysis-ofthe-final-version

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effect on Intellectual Property rights, the degree of secrecy, and the compatibility with EU treaties and fundamental rights.

b. ACTAs effect on Intellectual Property rights One of the most powerful French advocacy group defending the rights and freedoms of citizens on the Internet123, La Quadrature du Net, explained in a short video what are the main concerns about intellectual property law: Can you imagine your Internet service provider policing everything you do online? Can you imagine generic drugs that could save lives being banned? Can you imagine seeds that could feed 1000s being controlled and withheld in the name of patents? This will become reality with ACTA (). For the past 3 years, ACTA has been negotiated in secret by 39 countries. But the negotiators are not democratically elected representatives. They dont [sic] represent us, but they are deciding laws behind our backs. Bypassing our democratic processes, they impose new criminal sanctions to stop online file sharing. ACTA aims to make Internet Service & Access Providers legally responsible for what their users do online turning them into Private Copyright Police & Judge, censoring their networks. The chilling effects on free speech would be terrible ().124 (emphasis added). Beside the undemocratic character of this trade agreement, ACTA intends to criminalize copyright infringement when civil actions already exist. c. Secret or no secret? The debate is over. It is quite fascinating to see how ACTA was presented by the European Union. On the European Commission website125, just in analyzing what is ACTA not about, a particularly long list in comparison to the list of what is the trade agreement about, all the contrary arguments developed in the videotext are cited. For instance, the secret character is clearly denied. ACTA is not a secret agreement. () Like other international trade agreements, and more generally negotiations between different countries, ACTA was discussed in a confidential manner between the parties, so that partners around the table could freely express concerns and expectations126 (emphasis added).

123 124

La Quadrature du Net, Who are we?, http://www.laquadrature.net/en/who-are-we (last visited, April 5, 2012). Say NO to ACTA, YouTube, Oct. 27, 2011, http://www.youtube.com/watch?v=citzRjwk-sQ 125 http://ec.europa.eu/trade/creating-opportunities/trade-topics/intellectual-property/anti-counterfeiting/#timeline (last visited February 1, 2012). 126 Id.

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However, the letter sent by 75 law profs to the U.S. President in October 2010 explains how the negotiations were conducted. () Behind closed doors, subject to intense but needless secrecy, with the public shut out and a small group of special interests very much involved. () the first official release of a draft text took place only in April, 2010. And following that release the USTR has not held a single public on-the-record meeting to invite comments on the text. Worse, in every subsequent meeting of the negotiating parties, the U.S. has blocked the public release of updated text. () This degree of secrecy is unacceptable, unwise, and directly undercuts your oft-repeated promises of openness and transparency. () The Administrations determination to hide ACTA from the public creates the impression that ACTA is precisely the kind of backroom special interest deal undertaken in this case on behalf of a narrow group of U.S. content producers, and without meaningful input from the American public that you have so often publicly opposed127 (emphasis added).

Professor of Law Michael Geist has reiterated this fact in a recent appearance before European Parliament by emphasizing that ACTAs opaque approach was not an accepted practice, but was rather out-of-step with many other global norm-setting exercises. The WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on Private International Law, and an assortment of other conventions were all far more open than ACTA.128 Kader Arif, the European Parliament's rapporteur for ACTA, who resigned from its post at the end of January, expressed the lack of transparency.129

127

Over 75 Law Profs Call for Halt of ACTA, http://www.wcl.american.edu/pijip/go/blog-post/academic-signon-letter-to-obama-on-acta (last visited, March 8, 2012). 128 Michael Geist, Assessing ACTA: My Appearance Before the European Parliament INTA Workshop on ACTA (March 1, 2011), http://www.michaelgeist.ca/content/view/6350/125/ 129 Desmond Hinton-Beales, ACTA rapporteur resigns over lack of transparency, The Parliament (Jan. 27, 2012), http://www.theparliament.com/latest-news/article/newsarticle/acta-rapporteur-resigns-over-lack-oftransparency/. This agreement may have a major impact on the lives of our citizens, and yet everything is done so that the European parliament has no say," Arif said. "I will not participate in this charade."

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d. Compatibility with EU treaties and fundamental rights

With a treaty, when the main concerns are political by nature, the European Commission needed to act as a democratic authority. At the end of February, the intent of to ask the European Court of Justice (ECJ) for an opinion on the conformity of ACTA with fundamental rights and freedoms (including freedom of expression and information) was finally announced.130 This demonstrates the possibility to move the debate from the political to the legal sphere and allowing a Europes top court to independently clarify the legality of this agreement.131

The question, which is a mere rephrasing of article 218.11 of the Treaty on the Functioning of the EU132, is quite obvious: Is the Anti-Counterfeiting Trade Agreement (ACTA) compatible with the European Treaties, in particular with the Charter of Fundamental Rights of the European Union?133 Now, the European Court of Justice must take a decision.

In order to buying time, the European Parliament announced at the end of February that he will also refer ACTA to the European court of justice, but in a separate case from the one the European Commission has already launched.134 However, in March, the European Parliament

130

ECJ Referral: No Legal Debate Will Make ACTA Legitimate, La Quadrature du Net (Feb. 22, 2012), https://www.laquadrature.net/en/ecj-referral-no-legal-debate-will-make-acta-legitimate 131 Statement by Commissioner Karel De Gucht on ACTA (Anti-Counterfeiting Trade Agreement), http://trade.ec.europa.eu/doclib/press/index.cfm?id=778 (last visited March 8, 2012) 132 EU Commission Shamelessly Persists In Trying to Delay ACTA Vote, La Quadrature du Net, http://www.laquadrature.net/en/eu-commission-shamelessly-persists-in-trying-to-delay-acta-vote (last visited, April 5, 2012). 133 European Commission, Update on ACTA's referral to the European Court of Justice, Europa (April 4, 2012), http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/354&format=HTML&aged=0&language=EN&g uiLanguage=en 134 David Meyer, ACTA to get second referral to ECJ, causing new delay (Feb. 28, 2012), http://www.zdnet.co.uk/blogs/communication-breakdown-10000030/acta-to-get-second-referral-to-ecj-causingnew-delay-10025511/

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changed his mind, decided not to freeze ACTA for 18 months and to stick to its calendar.135 The Parliament is expected to vote in June, at its plenary session.136

As explained in the videotext, one of the main issues under ACTA is that internet providers would have to cooperate with governments to crack down on online piracy, via measures such as cutting off Internet access for those who have illegally downloaded music or other files.137 Aware that piracy and counterfeiting are serious problems affecting the world, ACTAs rules are, however, extremely strict.

e. ACTA approval postponed: for now or forever? After the Internet Blackout in January, the European citizens were conscious that it was possible to put pressure on Governments to show that the Internet of the future will not be considered without them. In February, huge manifestations were organized in all Europe. Scared that four years of discussions will be rejected by a simple vote, the EU Commissioner for International Trade Karel De Gucht managed some time to delay the procedure by one or two years138 as developed before.

As it was already the case with SOPA and PIPA, it is a democracy victory for the European citizens and for the protection of online freedoms. Now, the European Court of Justice will play a significant role in the ratification of ACTA.

135

La Quadrature du Net Wiki, ACTA: Procedure in the European Parliament, http://www.laquadrature.net/wiki/ACTA:_Procedure_in_the_European_Parliament (last visited, April 6, 2012). 136 EU Parliament Will Vote on ACTA Without Delay!, La Quadrature du Net (Mar. 27, 2012), http://www.laquadrature.net/en/eu-parliament-will-vote-on-acta-without-delay; see La Quadrature du Net, Letter to Members of the EU Parliament: ACTA ECJ Referral/Interim Report. EP Must Face its Political Responsibility, http://www.laquadrature.net/files/20120323_ACTA_EC_Referral__Interim_Report.pdf (last visited April 6, 2012). 137 Kristina Chew, supra note 119. 138 A Strategy Looking Through ACTA and Beyond, La Quadrature du Net, http://www.laquadrature.net/en/astrategy-looking-through-acta-and-beyond (last visited March 20, 2012).

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5. The Internet Blackout Based upon diverse concerns that SOPA would bypass the safe harbor protection of the DMCA as discussed before, censorship the Internet, and violate the first amendment, for the first time in the Internet history, we saw a massive revolution from the Internet users and important Web 2.0 websites. The Internet blackout will certainly remain an example of the biggest Internet support ever. A few days later, on the other side of the Atlantic, the European Union citizens also organized an enormous manifestation in the 27 countries to protest against ACTA. As a consequence of this revolution, U.S. Congress was forced to set aside SOPA and PIPA. To make sure that the Internet Age evolves in a manner compatible with the democracy139, these acts must not remain isolated, but, on the contrary, have to prove that the abuse of power has no place in a democracy.

a. January 18, 2012: the world against PIPA/SOPA The largest online strike that occurred a few months ago, clearly showed a first and important victory of the Internet against Hollywood-backed Congress. In the United States, Wikipedia was the prominent protester and made a huge impact with a 24-hour outage.140 The website quoted that more than 162 million people saw our message asking if you could imagine a world without free knowledge.141 Wikipedia tried to explain to the Internet users the importance of the Internet and the impact of repressive bills. The website explained that for over a decade, [they] have spent millions of hours building the largest encyclopedia in human history. Right now, the US Congress is considering legislation that could fatally damage the free and open Internet. For 24 hours, to raise awareness, we are blacking out Wikipedia.142

139

Amy Goodman, Internet Censorship Affects Everybody: Rebecca MacKinnon on the Global Struggle for Online freedom, Thurt-Out.org (Jan. 18, 2012), http://www.truth-out.org/internet-censorship-affects-everybodyrebecca-mackinnon-global-struggle-online-freedom/1326910185 140 Justin Massoud, RIAA chief: SOPA & PIPA were killed by misinformation (Feb. 25, 2012), http://www.myce.com/news/riaa-chief-sopa-pipa-were-killed-by-misinformation-59332/ 141 http://wikimediafoundation.org/wiki/SOPA/Blackoutpage (last visited March 7, 2012). 142 http://wikimediafoundation.org/wiki/SOPA/Blackoutpage (last visited March 7, 2012).

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Reddit, Craigslist and the black patch across the Google logo were other examples of protestation. Other everyday websites such as Twitter and Facebook143 did not join the online strike. Even if sometimes words can speak louder than action, this may demonstrate that they were not too much concerned by PIPA and SOPA, whereas Facebook, for instance, was targeted by these bills.

Some other statistics also shown how technology community and social media expression are extremely significant. Twitter saw more than 2.4 millions SOPA-related Tweets in 4 hours144, while 4.5 million people signed Google's anti-SOPA/PIPA petition, according to the Los Angeles Times.145 The people also shown their discontent through international protest movement such as The Occupy Movement and Anonymous Group. Especially the latter was omnipresent in the media because of, among other things, its operations involving distributed denial of service (DDoS) attacks to governments websites such as the United States Department of Justice and the FBI146, but also through solidarity campaigns, like One day without the 99%147 and Our Polls.148 Finally, 25 Senators now oppose PIPA according to OpenCongress.149 However, this strike by Google and Wikipedia was seen as to be an abuse of trust and a misuse of power150 by some people and in particular Cary H. Sherman, Chairman and CEO
143

Mike Flacy, Mark Zuckerberg speaks out against SOPA, rediscovers Twitter, Digital Trends (Jan. 18, 2012), http://www.digitaltrends.com/social-media/mark-zuckerberg-speaks-out-against-sopa-rediscovers-twitter/ 144 Twitter(@twitter). 2.4+ million SOPA-related Tweets from 12am-4pm ET today. Top 5 terms: SOPA, Stop SOPA, PIPA, Tell Congress, #factswithoutwikipedia.18 Jan 12, 7:37 PM. Tweet. 145 Google says 4.5 million people signed anti-SOPA petition today, http://latimesblogs.latimes.com/technology/2012/01/google-anti-sopa-petition.html (last visited March 20, 2012). For more details, see Deborah Netburn, SOPA blackout: How many have joined the fight?, Los Angeles Times, http://latimesblogs.latimes.com/technology/2012/01/sopa-blackout-how-many-have-joined-thefight.html, (last visited March 20, 2012). 146 Andrew Couts, Anonymous, Occupy launch Our Polls campaign against SOPA, PIPA, NDAA supporters in Congress, Digital Trends (Feb. 27, 2012), http://www.digitaltrends.com/social-media/anonymous-occupylaunch-our-polls-campaign-against-sopa-pipa-ndaa-supporters-in-congress/ 147 On May 1, 2012 will be a day without the 99%: No Work, No School, No Housework, No Shopping, No Banking for a peoples general strike, http://www.occupymay1st.org/ (last visited March 26, 2012). 148 This campaign targets members of Congress who supported a variety of bills [Occupy Movement and Anonymous] groups find particularly offensive. Namely: the Stop Online Piracy Act (SOPA), the PROTECT IP Act (PIPA), and the National Defense Authorization Act (NDAA): Andrew Couts, supra note 146. 149 Protect IP Act Senate whip count, http://www.opencongress.org/wiki/Protect_IP_Act_Senate_whip_count (last visited, March 20, 2012). 150 Cary H. Sherman, What Wikipedia Wont Tell You, The New York Times (Feb. 7, 2012), http://www.nytimes.com/2012/02/08/opinion/what-wikipedia-wont-tell-you.html

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of the Recording Industry Association of America (RIAA). He argued that when Wikipedia and Google purport to be neutral sources of information, [they] exploit their stature to present information that is not only not neutral but affirmatively incomplete and misleading, they are duping their users into accepting as truth what are merely self-serving political declarations.151 It is difficult to judge who is allow or not allow to protest, and why. It is certainly easier to defend Wikipedia which is a human creation while Google is a huge actor in the Internet market. However, without Googles action152, it will be a victory for the Internet censorship and not for the democratic Internet.

b. February 11, 2012: Europe against ACTA After the biggest online protest against PIPA and SOPA, the world faced another record with the largest offline revolution against copyright legislation on February 11, 2012.153 In more than 200 European cities, people took the streets to defend a free and open Internet.154 At the same time, it was also possible to vote online against the ratification of ACTA in Europe. Again, this clearly demonstrates that offline and online Internet users need to be taken into account when Governmental institutions are trying to pass treaties or bills that may have an impact on their everyday life.

The pressure is now on the European Parliament. His final vote in June may be decisive for the future of ACTA. If the vote is negative, the treatys chances are extremely tiny for ratification. On the contrary, then, the European Court of Justice will play a crucial role.

151 152

Cary H. Sherman, supra note 150. Google/Take Action, https://www.google.com/takeaction/sopa-pipa/ (last visited, April 2, 2012). 153 Ernesto, Massive Street Protests Wage War On ACTA Anti-Piracy Treaty, TorrentFreak (Feb. 11, 2012), http://torrentfreak.com/massive-street-protests-wage-war-on-acta-anti-piracy-treaty-120211/ 154 Id.

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CONCLUSION The beginning of 2012 has certainly been the most exciting period of time we have experienced since the creation of the Digital Millennium Copyright Act (DMCA). This legislation was introduced to regulate the fight against massive violations of copyright law on the Internet. Numerous legislative acts have been introduced including the Stop Online Piracy Act (SOPA), Protect IP Act (PIPA), Online Protection and Enforcement of Digital Trade (OPEN Act), Cyber Intelligence Sharing and Protection Act (CISPA) and Anti Counterfeiting Trade Agreement (ACTA). All these initiatives have at least one fundamental objective in common; which is to the regulate online copyright piracy.

The big challenge for the U.S. Congress is to anticipate the future and to pass a bill, which will reflect the changes constantly taking place in the online field. It is the first time in history that strong legislative measures were introduced to achieve a balance between intellectual property rights and online innovation155. PIPA and SOPA are two controversial bills that gave the U.S. Government permission to seek legal action against Internet websites; more precisely, to reduce Internet access to websites dedicated to infringing activities and foreign (infringing) Internet sites. For the copyright industry, it was the perfect dream. However, these acts contain numerous controversial issues: broad and vague definitions, Attorney Generals power to block Internet sites with a double action (in rem and in personam), overlaps with the DMCA safe harbor, possibility to block domain name beyond the borders, etc. As a consequence, after the largest online strikes that the world has never seen before, the two bills were shelved. Then, the House of Representative introduced the OPEN Act as a potential better solution to online piracy. This bill adopted a more democratic approach and was not criticized by the Internet users and the big Internet corporations, like Google, which is a positive step in comparison to SOPA and PIPA. Another difference with the two controversial bills is that the OPEN Act
155

Tyler G. Newby and Mitchell Zimmerman, supra note 71.

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will only apply to foreign websites and allow copyright holders to file complaints with the United States International Trade Commission. Subsequently, in April 2012, CISPA appeared in media and has already been described as the new SOPA and PIPA. Even if the bill was not primarily focused on Intellectual Property law, but was defined as an amendment of the National Security Act of 1947, the inclusion of intellectual property in the Bill [probably] means that companies and the government would have new powers to monitor and censor communications for copyright infringement.156 Finally, ACTA is still subject to a lot of criticism and the European ratification issues gave the impression that this (secret) treaty will probably never see the daylight.

As mentioned before, the Internet users are much more active this year than in the past. The online strike of January 18th and offline protestation against ACTA in February are two main examples of this new tendency. As a consequence, it becomes much more difficult for the U.S. Congress to pass new bills. How is this new tendency exactly working? Firstly, the new bill appears in media. Internet users have started to talk about it and they compare it to SOPA and PIPA, sometimes incorrectly. Then, some influential groups, like the Anonymous Group, share the idea on social media networks (e.g. YouTube and Twitter) with slogan such as save the Internet. As a consequence, people pay attention, raise their voice, create petition against the new bill and finally, the bill is eventually postpone.

The year 2012 is a milestone in the history of repressive laws on online copyright. This shows that, although the technologies are moving very quickly, the U.S. Congress seems to have found different methods to fight against alleged massive violations of copyrighted works on the Internet. However, they are not always adequate and cast doubt to still see, in the near future, a democratic, united and innovative Internet. As long as the Congress will try to pass Internet censorship bills like PIPA and SOPA, the current situation of websites with
156

Andrew Couts, supra note 94.

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infringing copyrighted content will remain the same. Based on the significant facts with the music industry and the growth of legitimate music services (like Spotify, I-tunes, Google Play), it is time to allow the Internet users to have access to the content they pirated on the Internet, most principally movies, at reasonable price, instead of creating anti-democraticpiracy bills.

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BIBLIOGRAPHY/REFERENCES Bills, statutes and other sources

ACTA - Anti-counterfeiting Trade Agreement, Europa (April 5, 2012), http://ec.europa.eu/trade/tackling-unfairtrade/acta/ Combating online infringement and Counterfeits Act http://www.govtrack.us/congress/billtext.xpd?bill=s111-3804 (COICA), S. 3804, 111th Cong. (2010),

Stop Online Piracy Act (SOPA), H.R. 3261, 112th Cong. (1st Sess. 2011) Preventing Real Online Threats to Economic Activity and Theft of Intellectual Property Act (PROTECT IP), S. 968, 112th Cong. (1st Sess. 2011) Cyber Intelligence Sharing and Protection Act (CISPA), H.R. 3523, 112th Cong. (2011-2012), http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.3523 Online protection and digital trade Act (OPEN Act), H.R. 3782, http://www.gpo.gov/fdsys/pkg/BILLS-112hr3782ih/pdf/BILLS-112hr3782ih.pdf 112th Cong. of of (2012), Texas, Justice,

Amendment in the nature of a substitute to H.R. 3261 offered by Mr. http://pub.bna.com/ptcj/3261ManagersAmendment.pdf (last visited March 15, 2012).

Smith

Case C-70/10, Scarlet v. SABAM, 2011 InfoCuria - Case-law of the Court http://curia.europa.eu/juris/document/document.jsf?docid=115202&doclang=EN&mode=&part=1

European Parliament resolution on the EU-US Summit of 28 November 2011, http://www.europarl.europa.eu/sides/getDoc.do?type=MOTION&reference=P7-RC-2011-0577&language=EN

Books

Lawrence Lessig, Code Version 2.0 8 (Basic Books, United States, 2008). Matthew David, Peer to peer and the Music Industry, The Criminalization of Sharing 59 (Sage Publications, London, 2010).

Law review articles

Debra Weinstein, Note and Recent Development, Defining Expeditious: Uncharted Territory of the DMCA Safe Harbor Provision a Survey of What We Know and Do Not Know About the Expeditiousness of Service Provider Responses to Takedown Notifications 603, (Cardozo Arts & Entertainment, Vol. 26:589, L.J. 589 (2008)). Henning Grosse Ruse-khan, The International law relation between Trips and subsequent Tripsplus free trade agreements: towards safeguarding Trips flexibilities, 18 J. Intell. Prop. L. 325 (2011). John Eric Seay, Hangem high: will the recording industry association of Americas new plan to posse up with internet service providers in the fight against online music piracy finally tame the wild internet?, 16 J. Intell. Prop. L. 269 (2009). Khaliunaa Garamgaibaatar, The Anti-counterfeiting trade agreement: copyrights, intermediaries, and digital pirates, 20 CommLaw Conspectus 199 (2011) Margot E. Kaminski, An overview and the revolution of the anti-counterfeiting trade agreement, 21 Alb. L.J. Sci. & Tech. 385 (2011). Susan K. Sell, Trips was never enough: vertical forum shifting, FTAS, ACTA, and TPP, 18 J. Intell. Prop. L. 447 (2011).

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The Internet, electronic media, and other nonprint resources

ACTA, La quadrature du Net, http://www.laquadrature.net/en/ACTA (last visited, April 5, 2012). ACTA: Updated Analysis of the Final Version, La Quadrature http://www.laquadrature.net/en/acta-updated-analysis-of-the-final-version du Net (Dec. 9, 2010),

AJ KUMAR, The Battle Against SOPA Is Far From Over, http://www.entrepreneur.com/blog/222756 (last visited February 21, 2012). Alex Dobuzinskis, US authorities seize websites over pirated movies, Reuters (Wed. June 30, 2010), http://www.reuters.com/article/2010/06/30/film-piracy-idUSN308348820100630 Amy Goodman, "Internet Censorship Affects Everybody": Rebecca MacKinnon on the Global Struggle for Online Freedom, http://www.truth-out.org/internet-censorship-affects-everybody-rebecca-mackinnon-globalstruggle-online-freedom/1326910185 (last visited January 22, 2012). Andrew Couts, Anonymous, Occupy launch Our Polls campaign against SOPA, PIPA, NDAA supporters in Congress, Digital Trends (Feb. 27, 2012), http://www.digitaltrends.com/social-media/anonymous-occupylaunch-our-polls-campaign-against-sopa-pipa-ndaa-supporters-in-congress/ Andrew Couts, Watch out, Washington: CISPA replaces SOPA as Internets Enemy No. 1, Digital Trend (April 5, 2012), http://www.digitaltrends.com/web/watch-out-washington-cispa-replaces-sopa-as-internets-enemy-no1/ ; Anne Sewell, Move over SOPA & PIPA: Here comes CISPA Internet censorship, Digital Journal (April 4, 2012), http://www.digitaljournal.com/article/322396#ixzz1rC3AMtCF; BASCAP, ACTA in the EU A Practical http://www.iccwbo.org/uploadedFiles/BASCAP/Pages/ACTA_2012(1).pdf Analysis (Feb. 2012),

Bianca Bosker, Facebook IPO Filing Reveals Its Stunning Size: A Private Jet, $1 Billion In Profits, And More, HuffpostTech (Feb. 01, 2012), http://www.huffingtonpost.com/2012/02/01/facebook-ipo-filingrevea_n_1248434.html Carr David, The Danger of an Attack on Piracy Online, The New York Times (Jan. 1, 2012), http://www.nytimes.com/2012/01/02/business/media/the-danger-of-an-attack-on-piracy-online.html?_r=1 Cary H. Sherman, What Wikipedia Wont Tell You, The New York Times (Feb. 7, 2012), http://www.nytimes.com/2012/02/08/opinion/what-wikipedia-wont-tell-you.html Center for democracy and technology, The Stop Online Piracy Act: Summary, Problems and Implications, CDT (Nov. 15, 2011), https://www.cdt.org/paper/sopa-summary Christina DesMarais, SOPA, PIPA Stalled: Meet the OPEN Act (Jan. 21, http://www.pcworld.com/article/248525/sopa_pipa_stalled_meet_the_open_act.html#tk.mod_stln Cynthia Wong, US Piracy Law Could Threaten Human Rights (Nov. https://www.cdt.org/blogs/cynthia-wong/1811us-piracy-law-could-threaten-human-rights; David Banks, CISPAthe new SOPA, Cyborgology http://thesocietypages.org/cyborgology/2012/04/05/cispa-the-new-sopa/ (April 18, 6, 2012), 2011), 2012),

David Meyer, ACTA to get second referral to ECJ, causing new delay (Feb. 28, 2012), http://www.zdnet.co.uk/blogs/communication-breakdown-10000030/acta-to-get-second-referral-to-ecj-causingnew-delay-10025511/ David G. Post, SOPA and the Future of Internet Governance, http://verdict.justia.com/2012/02/13/sopa-and-the-future-of-internet-governance Justia (Feb. 13, 2012),

Deborah Netburn, SOPA blackout: How many have joined the fight?, Los Angeles Times, http://latimesblogs.latimes.com/technology/2012/01/sopa-blackout-how-many-have-joined-the-fight.html, (last visited March 20, 2012).

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Justin Massoud, RIAA chief: SOPA & PIPA were killed by misinformation (Feb. 25, 2012), http://www.myce.com/news/riaa-chief-sopa-pipa-were-killed-by-misinformation-59332/ Karan Chopra, Germany Holds-Off Signing ACTA Until EU Parliamentary Decision (Feb. 11, 2012), http://i2mag.com/germany-holds-off-signing-acta-until-eu-parliamentary-decision/ Keep the web open, http://keepthewebopen.com/ (last visited February 3, 2012). Kristina Chew, ACTA Approval Postponed For Now: Does the Treaty Violate EU Rights? (Feb. 25, 2012), http://www.care2.com/causes/acta-approval-postponed-for-now-does-the-treaty-violate-eurights.html#ixzz1oXePJxTv Larry Downes, Who Really Stopped SOPA, and Why?, http://www.forbes.com/sites/larrydownes/2012/01/25/who-really-stopped-sopa-and-why/ (last visited January 28, 2012). La Quadrature du Net Wiki, ACTA: Procedure in the European Parliament, http://www.laquadrature.net/wiki/ACTA:_Procedure_in_the_European_Parliament (last visited, April 6, 2012). Markham C. Erickson, H.R. 3261, Stop Online Piracy Act (SOPA) Explanation of Bill and Summary of Concerns, Net Colation, http://www.net-coalition.com/wp-content/uploads/2011/08/NC-Analysis-of-H-R-3261_-Nov-15.pdf (last visited March 19, 2012). Martin Carstens, If SOPA was an aircraft carrier, ACTA and TPP are nuclear submarines, http://memeburn.com/2012/02/if-sopa-was-an-aircraft-carrier-acta-and-tpp-are-nuclear-submarines/ (last visited February 3, 2012). Media Council, Protecting Content and Promoting Innovation in a Digital World: A Post-SOPA/PIPA Conversation, February 14, 2012, http://www.paleycenter.org/mc-breakfast-post-sopa-pipa-dialogue Michael Geist, Assessing ACTA: My Appearance Before the European Parliament INTA Workshop on ACTA (March 1, 2011), http://www.michaelgeist.ca/content/view/6350/125/ Michael H. Berkens, Feds Seize 9 Domains For Copyright Infringement, But Based On What Law?, The Domains (July 1, 2010), http://www.thedomains.com/2010/07/01/feds-seize-9-domains-for-copyrightinfringement-but-based-on-what-law/ Mike Flacy, Mark Zuckerberg speaks out against SOPA, rediscovers Twitter, Digital Trends (Jan. 18, 2012), http://www.digitaltrends.com/social-media/mark-zuckerberg-speaks-out-against-sopa-rediscovers-twitter/ Mike Masnick, Latvia Joins Countries Putting The Brakes On ACTA Approval, Techdirt (Feb. 9, 2012), http://www.techdirt.com/articles/20120209/13525017717/latvia-joins-countries-putting-brakes-actaapproval.shtml Mike Masnick, How Much Is Enough? We've Passed 15 'Anti-Piracy' Laws In The Last 30 Years, http://www.techdirt.com/articles/20120215/04241517766/how-much-is-enough-weve-passed-15-anti-piracylaws-last-30-years.shtml (last visited March 6, 2012). Motion Picture Association of America, The Cost of Content Theft by the Numbers, http://www.mpaa.org/Resources/8c33fb87-1ceb-456f-9a6e-f897759b9b44.pdf (last visited April 6, 2012) and Nate Anderson, Son of ACTA: meet the next secret copyright treaty, http://arstechnica.com/techpolicy/news/2011/03/son-of-acta-meet-the-next-secret-copyright-treaty.ars (last visited February 3, 2012) Nate Anderson, Why the feds smashed Megaupload, Ars Technica, http://arstechnica.com/techpolicy/news/2012/01/why-the-feds-smashed-megaupload.ars (last visited March 22, 2012). Nate Anderson, Czech, Slovak governments backing away from ACTA, too, Ars Technica, http://arstechnica.com/tech-policy/news/2012/02/czech-slovak-governments-backing-away-from-acta-too.ars (last visited March 26, 2012). National Intellectual Property Rights Coordination Center, Operation In Our Sites, http://www.ice.gov/doclib/news/library/factsheets/pdf/operation-in-our-sites.pdf (last visited April 6, 2012).

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Zach Walton, TPP Follows ACTA, Twitter Calls It World War Web, http://www.webpronews.com/tpp-sopapipa-2012-02 (last visited February 3, 2012).

Internet video: o YouTube

(Jan April (Jan 27, 4, 14, 2012), 2012, 2012),

ACTA More Dangerous Than SOPA or PIPA: Issa, YouTube http://www.youtube.com/watch?feature=player_embedded&v=BsOnFaLwocg#! Anonymous CISPA Worse than SOPA, http://www.youtube.com/watch?v=uREYgaf2ZJE&feature=youtu.be YouTube,

CNN: Law Enforcement Is Intimidated By Anonymous, YouTube http://www.youtube.com/watch?feature=player_embedded&v=z_72AsyJlrE#!

Harvard Prof: Megaupload-Style Cases Will Kill Prosecuted Companies, YouTube (Jan 26, 2012), http://www.youtube.com/watch?v=ZmhoYX7EdXo&feature=youtu.be Say NO to ACTA, YouTube, Oct. 27, 2011, http://www.youtube.com/watch?v=citzRjwk-sQ SOPA and PIPA: How We Got Here, YouTube http://www.youtube.com/watch?feature=player_embedded&v=9TpZJA9EIPY# (Dec. 15, 2011),

Worse than SOPA? CISPA to censor Web in name of cybersecurity, YouTube, April 4, 2012, http://www.youtube.com/watch?v=6rVV5tFCuqo;

o Others
Protecting Content and Promoting Innovation in a Digital World: A Post-SOPA/PIPA Conversation, February 14, 2012, http://www.paleycenter.org/mc-breakfast-post-sopa-pipa-dialogue Clay Shirky: Why SOPA is a bad idea, TEDSalon, NY2012, Jan http://www.ted.com/talks/lang/en/defend_our_freedom_to_share_or_why_sopa_is_a_bad_idea.html 2012,

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