The Wrong Way to Protect IP

For a few months now we’ve been tracking a couple of ostensibly artist-friendly bills in Congress that are designed to enhance the ability of copyright-holders to enforce their rights online by shutting down websites dedicated to piracy of intellectual property. Think MP3s, movies, and filesharing (and some more nefarious stuff, too, like Russian websites that sell complete digital albums for a few bucks and never pay the artists).

The House bill is called SOPA (H.R. 3261), and its Senate counterpart is the Protect IP Act (S. 968). So far, folks claiming to represent artists have lined up in support. Mainly that includes the RIAA and the MPAA (hence “claiming” to represent). Most of the big performing arts unions have also signed on.

Fractured Atlas has the largest membership of any arts service organization in the country. As a non-profit, our raison d’etre is to support and assist the arts community in whatever ways we can. It should go without saying that we believe passionately in the importance of artists being paid for their work. We fundamentally believe in copyright and think it can and should be enforced. The problem is that these bills are the wrong way to do it.

The enforcement mechanisms in SOPA and Protect IP will have a dangerous, destabilizing effect on the technical fabric of the internet. This isn’t the right forum for a deeply technical discussion, but suffice it to say that they mess with the Domain Name System, a.k.a. DNS. DNS is how your browser knows what server to look for when you type in a web address like or For an excellent and fairly accessible summary of the inherent flaws in this approach, check out this piece from the Center for Democracy and Technology. There’s also a great post on Copyblogger.

The other big problem with SOPA and Protect IP is that they allow for private right of action. That means there’s little to no due process involved. It would be terrifyingly easy for someone to shut down a competitor’s website by falsely claiming it was illegally distributing copyrighted material. Yes, there are ways to defend oneself, but they’ve proven complicated, expensive, and error prone. So unless you can afford a team of high-priced lawyers, you’re vulnerable.

This afternoon I wrote a letter to Senate leadership urging them not to proceed with passing Protect IP without giving a full hearing to alternative approaches. The full copy of the letter is embedded below.

If you’d like to weigh in yourself, you can use this tool provided by Daily Kos. It’ll just take a few seconds to get your message to your Senators. Even better, talk to your Senators while they’re on the January recess.

It’s admirable that folks in Congress want to stand up for the rights of artists. But let’s be smart about it. Instead of rushing through misguided, dangerous legislation, let’s all take a deep breath, go back to the drawing board, and take the time to get this right.

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6 Responses to “The Wrong Way to Protect IP”

  1. Mona Ibrahim:

    You should check out the amendment’s work-around to the originally obscene provisions in 103 that are now found in 105– while the “official” notification procedure has been removed, there’s nothing to lose and everything to gain for immune entities to protect their interests and immunity based on a “good faith, credible” belief of infringement– a private party could send a complaint and that may be sufficient to create that belief under the act. Since there’s no issue of a defective complaint like you’d find in the original 103 or the DMCA safe harbors, it poses even less of a risk to private parties that use this particular method of blackmail/anti-competitive behavior.

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    [...] Last week I told you why Fractured Atlas is opposing SOPA and PIPA, a pair of bills in Congress that claim to protect the rights of artists but would be both ineffective at that goal and damaging to the technical fabric of the internet. We were the first major arts organization to take this stand, and we took some heat for it, but I believe we also moved the needle on our community’s understanding of these complicated issues. [...]