When the World Wide Web Becomes the World Wild Web: PIPA, SOPA, OPEN Act, CISPA and The “Internet Revolution”


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It is not a secret anymore: digital technology is transforming copyright, for better and for worse. 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 forward-looking effort to stop copyright infringers 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.
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. More precisely, cyberspace “demands a new understanding of how regulation works. It compels us to look beyond the traditional lawyer’s scope – beyond laws, or even norms. It requires a broader account of “regulation”, and most importantly, the regulation of a newly salient regulator.” 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.

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When the World Wide Web Becomes the World Wild Web: PIPA, SOPA, OPEN Act, CISPA and The “Internet Revolution”

  1. 1. When the World Wide Web Becomes the World Wild Web:PIPA, SOPA, OPEN Act, CISPA and The “Internet Revolution”Thomas DubuissonLaw In Cyberspace, Intellectual Property Law LL.M ProgramThe George Washington University Law School, Washington, DC 20052, USAtdubuisson@law.gwu.eduINTRODUCTION.................................................................................................................. 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 sitesdedicated 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.   ACTA’s 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  
  2. 2.   2  INTRODUCTIONSince the beginning of the year 20121, the United States has been immersed in a worldwideultra-repressive copyright enforcement agenda. The Protect IP act (PIPA), Stop Online PiracyAct (SOPA), Online Protection and Enforcement of Digital Trade (OPEN Act), the CyberIntelligence Sharing and Protection Act (CISPA), and the Anti-Counterfeiting TradeAgreement (ACTA) are invading the medias everywhere. PIPA and SOPA are two bills thatgive the Government permission to seek legal action with any website content that infringe oncopyright law. For the movie and music industry, these bills are the perfect dream. ForInternet users and the small start-ups that depend on the Internet, probably not. In themeantime, the dangerous ACTA agreement is currently been discussed in Europe but seemsto face considerable obstacles.It is not a secret anymore: digital technology is transforming copyright, for better and forworse.2Infringement is widespread and this situation needs to change. An attempt has alreadybeen made in the past. In 1998, congressional enactment of the “anti-circumventions”provisions of the Digital Millennium Copyright Act (DMCA) was a remarkably forward-looking effort3to stop copyright infringers4and balancing interests of intellectual property(IP) holders and potential innovators. Since then, the Internet has evolved. The creation of aDMCA II was welcome. Instead of going through this “safe” next step, the United StatesCongress has embarked on a particularly slippery slope. As a result, bills are so repressivetoday and they may dictate the way the next technologies are going to operate, in whole or inpart. The current reality that laws are incapable of catching the development of newtechnologies, based on the American comedy-drama film “Catch Me If You Can”, is perhapsnot a fiction anymore. But not at any price, especially when it affects the Internet democracy.                                                                                                                1The research for this paper was completed in April 2012.2Ian Hargreave, Digital Opportunity. A review of Intellectual Property and Growth 26 (May 2011),http://www.ipo.gov.uk/ipreview-finalreport.pdf3For 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_fc85k7c4For examples of Congress stated purpose in enacting the DMCAs anti-circumvention provisions, see 144Cong. Rec. H7093, H7094-5 (Aug. 4, 1998); Senate Judiciary Comm., S. Rep. 105-190 (1998) at 29; JudiciaryComm., H. Rep. 105-551 Pt 1 (1998) at 18; House Commerce Comm., H. Rep. 105-551 Pt 2 (1998) at 38.
  3. 3.   3  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 lawschange, that laws differ between countries, and that laws are open to interpretation.5Moreprecisely, cyberspace “demands a new understanding of how regulation works. It compels usto look beyond the traditional lawyer’s scope – beyond laws, or even norms. It requires abroader account of “regulation”, and most importantly, the regulation of a newly salientregulator.”6SOPA and PIPA demonstrate how difficult it is for an established democracy toprotect 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 ofthese 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 comparisonto SOPA and PIPA and what are the legal solutions proposed in this bill. The third part brieflyconcerns the new method to prevent cyber-attacks, through CISPA, with its impact onintellectual property rights. The fourth part will discuss the recent developments in Europewith ACTA, namely the issues concerning the European ratification and the future of ACTAin the world. Finally, the fifth part will be devoted to the online and offline Internetrevolution/Internet blackout that occurred in January and February 2012.                                                                                                                                  5Matthew David, Peer to peer and the Music Industry, The Criminalization of Sharing 59 (2010).6Lawrence Lessig, Code Version 2.0. 8 (2008).
  4. 4.   4  1. The battle against two anti-piracy bills: PIPA and SOPAa. The rootsi. Political ApproachIn 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 ofAmerica (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 one-quarter of all Internet traffic is copyright infringement7and according to the MPAA,“pernicious forms of digital theft occur through the use of websites.”8Based on these facts, the 111thand 112thCongress “[have] introduced legislation that wouldstrengthen U.S. law enforcements capacity to take action against foreign "rogue" websitesthat traffic in [sic] stolen and counterfeit American-made films, television shows, music andother goods. This legislation is bicameral, bi partisan, and would protect hundreds ofthousands of American jobs, billions in taxes and economic output, and health and publicsafety of all Americans. The legislation would [also] protect American consumers from thedeception 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 responsibilityin cutting off these sites from the American marketplace.”9Briefly, 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 StatesImmigration and Customs Enforcement agency and the U.S. attorney for the SouthernDistrict of New York) seized nine websites accusing them of movie piracy; these                                                                                                                7Motion 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) andEnvisional, 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).8Motion 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).9Motion Picture of America Association, http://www.mpaa.org/contentprotection/roguewebsites (last visitedApril 6, 2012).
  5. 5.   5  websites offered free access to movies such as "Toy Story 3."10This operation wascalled "Operation In Our Sites"11, better known, today, as “rogue websites”.Interestingly, some of the websites were based in the United States and others inEurope.12The conceptual framework of PIPA and SOPA were already unconsciouslyin place.The “rogue websites” constituted the corner stone of all these legislations and “typicallyengage 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 bylinking 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.”13This definition permits to better understand how SOPA and PIPA were thinking. The MPAAalso insists on the steps taken by “rogue websites” to deceive consumers into believing theyare legitimate.14Section 102 of SOPA tries to take these steps into account:o “The use of credit card companies, such as Visa and MasterCard, to facilitatepayments 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 paymentfrom the public for subscriptions, donations, purchases and memberships.o The use of advertising, often for mainstream, Blue Chip companies, on thewebsites.”15                                                                                                                10Alex Dobuzinskis, US authorities seize websites over pirated movies, Reuters (Wed. June 30, 2010),http://www.reuters.com/article/2010/06/30/film-piracy-idUSN30834882010063011National 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).12Michael H. Berkens, Feds Seize 9 Domains For Copyright Infringement, But Based On What Law?, TheDomains (July 1, 2010), http://www.thedomains.com/2010/07/01/feds-seize-9-domains-for-copyright-infringement-but-based-on-what-law/13Motion 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).14Id.
  6. 6.   6  -­‐ In the month following the seizure, the Obama Administration Agencies, PublicKnowledge and some other organizations, started discussions concerning the issues ofseizures of websites violating copyright law.16-­‐ The last step, as it will be discussed in the legal approach, was the introduction of theCombating Online Infringement and Counterfeits Act (COICA) on September 2010.ii. Legal approachSenator Orrin Hatch commented “the Internet is not a lawless free-for-all where anythinggoes. The Constitution protects both property and speech, both online and off.”17In otherwords, it was time to revise the Digital Millennium Copyright Act (DMCA). Indeed, this Actwas considered as part of an effort "to begin updating national laws for the digital era.”18Broadly speaking, it was “designed to facilitate the robust development and world-wideexpansion of electronic commerce, communication, research, development and education inthe digital age.”19How? By protecting “Internet service providers and others with so-called"safe harbor" provisions that essentially limit a partys liability on the premise that it acted ingood faith or in compliance with standards.”20Although, when the DMCA was enacted, manyuser-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 notcompatible with the Internet Age, especially when it comes to laws and regulations governing                                                                                                                15Motion Picture Association of America, supra note 13.16SOPA and PIPA: How We Got Here, YouTube (Dec. 15, 2011),http://www.youtube.com/watch?feature=player_embedded&v=9TpZJA9EIPY#17Draconian 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).18H.R. Rep. No. 105-551, pt. 2, at 21 (1998).19S. Rep. No. 105-190, at 1 (1998).20Post 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
  7. 7.   7  the web.”21This proved to be true. On September 20, 2010 Senator Patrick Leahy introduceda bill known as the Combating Online Infringement and Counterfeits Act (COICA).22Theaim of the Bill was “to combat online infringement, and for other purposes.”23This isaddressed by the US Attorney General who was allowed to target “Internet sites dedicated toinfringing 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 aperson acting in concert with the operator, to offer (…) [copyrighted files withoutauthorization].”24Unfortunately for the Chairmen Senator – even if the bill passed the Senate Committee on theJudiciary - the bill never received a full vote on the Senate Floor. However, the senatorPatrick Leahy did not remain unmoved. On May 12, 2011 he introduced the Protect IP Actalso known as the Preventing Real Online Threats to Economic Creativity and Theft ofIntellectual Property Act,25which is a re-write of the COICA.The aim of this second bill was quite similar to the previous one: to prevent online threats toeconomic creativity and theft of intellectual property, and for other purposes. Again, there isanother definition of an “Internet site dedicated to infringing activities.”26The novelty residesin the section 3, dedicated to the enhancing enforcement against rogue websites operated andregistered overseas. While COICA mentioned websites “not located domestically”, PIPAclearly qualified them as “rogue websites”. Reader’s can perceived the change mentality thatmade such law more restrictive.                                                                                                                21Rebecca MacKinnon, Why doesn’t Washington understand the Internet?, The Washington Post (Jan. 20,2012), http://www.washingtonpost.com/opinions/why-doesnt-washington-understand-the-internet/2012/01/17/gIQAGPzWEQ_story.html22An Act Combating online infringement and Counterfeits, S. 3804, 111thCong. (2010),http://www.govtrack.us/congress/billtext.xpd?bill=s111-380423Id.24An Act Combating online infringement and Counterfeits, supra note 22.25An Act Preventing Real Online Threats to Economic Activity and Theft of Intellectual Property (PROTECTIP Act), S. 968, 112th Cong. (1stSess. 2011), http://www.govtrack.us/congress/billtext.xpd?bill=s112-96826Id.
  8. 8.   8  Then, the United States House of Representative also decided to introduce a bill “to promoteprosperity, creativity, entrepreneurship, and innovation by combating the theft of U.S.property, and for other purposes.”27Better known as SOPA, this bill is designed to enforcefederal copyright and trademark law in the age of the Internet.28Behind these noble bills and intentions of Washington, the reality is not that rosy. The impacton the freedom of expression and on innovative global Internet is considerable. It is also easyto spread misinformation on the Internet. Therefore, it is essential to understand what wereexactly the aims of these bills and the intention of Congress, and how eventual seriousdamages could have been occurred.b. The real PIPA/SOPA effect and the accuracy of the claimsi. The effect of the anti-piracy ActIt is not the first time that Hollywood-backed Congress tried to pass an “anti-piracy” Act. Infact, PIPA/SOPA was the 16thattempt.29The main objective of SOPA was to reduce access towebsites dedicated to infringing activities and foreign (infringing) Internet sites, like e.g.Megaupload.30One of the reasons is that these websites generated an enormous amount ofmoney 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 Americasintellectual property costs the U.S. economy more than $100 billion annually and results inthe loss of thousands of American jobs. Under current law, rogue sites that profit from selling                                                                                                                27An Act to Stop Online piracy, H.R. 3261, 112thCong. (2010),http://www.govtrack.us/congress/billtext.xpd?bill=h112-326128Floyd Abrams, Stop Online Piracy Act (Nov. 7, 2011), http://www.mpaa.org/resources/1227ef12-e209-4edf-b8b8-bb4af768430c.pdf29Mike Masnick, How Much Is Enough? Weve 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-piracy-laws-last-30-years.shtml (last visited March 6, 2012).30Nate Anderson, Why the feds smashed Megaupload, Ars Technica, http://arstechnica.com/tech-policy/news/2012/01/why-the-feds-smashed-megaupload.ars (last visited March 22, 2012).
  9. 9.   9  pirated goods are often out of the reach of U.S. law enforcement agencies and operate withoutconsequences. The Stop Online Piracy Act helps stop the flow of revenue to rogue websitesand ensures that the profits from American innovations go to American innovators.”31However, the problem is twofold. First, people leave in a world where the digital informationcan be reproduced at nearly zero cost.32Second, there are no physical locations on the Internetspace and it is, as a result, difficult to apply a law for all the websites.33ii. Accuracy of the claimsSOPA and PIPA were heavily criticized on the Internet. As a result, it appears to be useful toanalyze more in details what are exactly the issues in these two similar bills. For the sake ofconvenience, only the sections concerning copyright infringement of title I “combating onlinepiracy” of SOPA34will 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 anallegedly “foreign infringing site”. Broadly speaking, if granted, the court order could haveserious consequences, like the denying of the site access to payment processors, advertisingservices and parts of the domain name system.Based on the Manager Amendments36to SOPA, a site will be considered as an infringing siteif:                                                                                                                31Patrick J. Kiger, Will Anti-Piracy Legislation Lead to an Alternative Hacker-Controlled Internet?, Sciencediscovery, http://blogs.discovery.com/good_idea/2012/01/will-anti-piracy-legislation-lead-to-an-alternative-hacker-controlled-internet.html; For other articles supporting SOPA, see, e.g., Ernesto, How SOPA CouldActually Benefit File-Sharers, TorrentFreak (March 24, 2012), http://torrentfreak.com/how-sopa-could-actually-benefit-file-sharers-120324/; Rep. Goodlatte, Goodlatte introduces legislation to protect American Jobs, Pressreleases http://goodlatte.house.gov/press_releases/281 (last visited March 25, 2012).32David 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-governance33Id.34SOPA 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.35The provisions mentioned in this research paper are based on the manager’s 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).36Hereafter, “M.A.”
  10. 10.   10  (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 domesticInternet site, subject it (or its associated domain name) to—(A) seizure or forfeiture in the United States in an action brought by theAttorney 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, UnitedStates 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, thedefinition included site “facilitating” criminal infringement37and by consequence, imposed anextremely low burden on the AG of showing that the site is a foreign infringing site. Themanager’s amendments seem to delete this part of the definition. In fact, SOPA still applies tosuch sites.38Although not cited in M.A. Sec. 102, the statutory provision, which enables civilforfeiture, 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” ofcriminal intellectual property infringement (18 U.S.C. §2323(a)(1)(B)).39Therefore, this amended provision still concerns Internet sites that are facilitating thecommission of copyright infringement. In fact, the reference to “forfeiture” broadens thedefinition through the incorporation of languages such as “intended to be used” and propertyused “in any manner or part”. This entails the risk that too vague and broad definition may beabuse in the future. As a result, the DMCA safe harbor defense seems to be useless. Assumingthat an Internet site meets the requirements, the site operator becomes liable for copyrightinfringement 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) inthe action against the persons owing or using the property, in personam action, SOPA                                                                                                                37See H.R. 3261 14, lines 4-19 (as introduced).38Net coalition, NetCoalition’s Detailed Analysis of Managers Amendment on SOPA, http://www.net-coalition.com/wp-content/uploads/2011/08/Detailed-Analysis-of-SOPA-Managers-Amendment-v2-12-14-2011.pdf (last visited March 15, 2012).39Id.
  11. 11.   11  imposes its sanctions on the domain names used by those websites. (2) With the in remaction, by assimilating domain names to property, SOPA avoids the problem “of trying toassert personal jurisdiction over the foreign actors or the foreign servers that are involved in agiven dispute.”40Practically, if the AG decides to take an action against an Internet site, thena 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 thesite and this, “as expeditiously as possible”41(M.A., Sec. 102(c)(2)(A)(i)). The secondparagraph, safe harbor, describes that the obligation of the service provider to takereasonable measures is “fully satisf[ied]” by measures “designed to prevent a nonauthoritative domain name system server under the direct control of the serviceprovider from resolving the domain name of the foreign infringing site to that domainname’s Internet Protocol address.”42In other words, SOPA requires website blockingand imposes new responsibilities on Internet Service Providers to scrutinize andscreen all user traffic.43This obligation of “prevent access” is also “similar to that of aPennsylvania Statute overturned on constitutional grounds in CDT v. Pappert.”44-­‐ Secondly, search engines45(e.g. Google, Bing, Yahoo!, etc.) shall take measuresdesigned to prevent the serving of a direct hypertext link to the foreign infringing site(M.A., Sec. 102(c)(2)(B)).46This provision seems to have exactly the same purpose                                                                                                                40David G. Post, supra note 32.41As introduced, the bill included a clarification for the “expeditiously as possible” requirement by adding “inany 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 criticabout this standard, see, e.g., Debra Weinstein, Note and Recent Development, Defining Expeditious: UnchartedTerritory of the DMCA Safe Harbor Provision a Survey of What We Know and Do Not Know About theExpeditiousness of Service Provider Responses to Takedown Notifications 603, (Cardozo Arts & Entertainment,Vol. 26:589, L.J. 589 (2008)).42Amendment in the nature of a substitute to H.R. 3261 offered by Mr. Smith of Texas 15, lines 16-21.43Center for democracy and technology, The Stop Online Piracy Act: Summary, Problems and Implications,CDT (Nov. 15, 2011), https://www.cdt.org/paper/sopa-summary44Id.45The amendment’s definition is slightly different from the introduced bill. It defines a search engine to be “aservice made available via the Internet whose primary function is gathering and reporting, in response to a userquery, indexed information or Web sites available elsewhere on the Internet”; see Amendment in the nature of asubstitute to H.R. 3261 offered by Mr. Smith of Texas 7, lines 1-5.46See Amendment in the nature of a substitute to H.R. 3261 offered by Mr. Smith of Texas 18, lines 7-14.
  12. 12.   12  and meaning as the existing framework of the DMCA47(see 17 U.S.C. §512(d)) andtherefore 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 service49will be required to stop providing anadvertising 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 anew in rem jurisdictional theory “to provide U.S. courts with jurisdiction over foreign sitesthat are, among other things, available to users in the United States.”50This section alsocreates confusion by interfering with the DMCA safe harbor and “threatens the ongoingsuccess of the U.S. Internet industry, which is one of the most successful and fastest growingsectors of the United States economy.”51This 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 512of title 17, United States Code” (M.A., Sec. 102(c)(2)(A)(iv)). However, in practice, thingscould be different. As it will be developed hereafter, SOPA “has the potential to effectivelyusurp the DMCA safe harbor in important respects. If the bill is enacted, online serviceproviders will face a new worst nightmare: being cut off from payment processors, adnetworks, and possibly even Internet service providers.”52On the other hand, the fact that thebill encompasses vague and broad definitions, it is hard to predict how SOPA would impact                                                                                                                47Ian C. Ballon, DMCA liability limitations for social networks, blogs, websites, and other service providers andthe UGC, http://www.ianballon.net/linked/dmcaexcerptwithwhitedoutcover.pdf (last visited March 19, 2012).48This term means “an entity that directly or indirectly provides the proprietary services, infrastructure, andsoftware to effect or facilitate a debit, credit, or other payment transaction”, see Amendment in the nature of asubstitute to H.R. 3261 offered by Mr. Smith of Texas 8, lines 15-20.49The term means “a service that for compensation sells, purchases, brokers, serves, inserts, verifies, or clearsthe placement of an advertisement, including a paid or sponsored search result, link, or placement, that isrendered in viewable form for any period of time on an Internet site”, see Amendment in the nature of asubstitute to H.R. 3261 offered by Mr. Smith of Texas 5, lines 21-25; 6, lines 1-3.50Markham C. Erickson, H.R. 3261, “Stop Online Piracy Act” (“SOPA”) Explanation of Bill and Summary ofConcerns, 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).51Id.52Ryan Radia, Why SOPA threatens the DMCA safe harbor, (Nov. 18, 2011),http://techliberation.com/2011/11/18/why-sopa-threatens-the-dmca-safe-harbor/
  13. 13.   13  the service providers and how Federal judges will interpret the bill. As mentioned before, theDMCA continues today to engender serious disagreement among federal courts.53To conclude, blocking domain name beyond the borders is certainly not a suitable alternativeto online piracy. As a consequence, a few weeks after the Congress proposed the Act, theEuropean 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 globalInternet and freedom of communication by refraining from unilateral measures to revoke IPaddresses or domain names.”55This eventual worldwide blocking ability that SOPA couldgive to the United States can affect companies in EU member states56with .com, .org or .netdomains, but also in the rest of the World. As 60 press freedom and human rights advocategroups put it in their letter, “this is as unacceptable to the international community as it wouldbe if a foreign country were to impose similar measures on the United States.”57Only atransparent, international and democratic treaty in respect of freedom of expression shouldconsider this matter.-­‐ Section 103. Protection of U.S. customers and prevention of U.S. funding of sitesdedicated to theft of U.S. property.This section was probably the most controversial one and was subject to a lot of criticism bythe 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                                                                                                                53Id.54Ernesto, EU Adopts Resolution Against US Domain Seizures, TorrentFreak (Nov. 17, 2011),http://torrentfreak.com/eu-adopts-resolution-against-us-domains-seziures-111117/55European 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=EN56It 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 theCourt of Justice,http://curia.europa.eu/juris/document/document.jsf?docid=115202&doclang=EN&mode=&part=157https://s3.amazonaws.com/access.3cdn.net/0f3a84cf371bee7598_rsm6bxi0v.pdf mentioned by Ernesto, EUAdopts Resolution Against US Domain Seizures, TorrentFreak (Nov. 17, 2011), http://torrentfreak.com/eu-adopts-resolution-against-us-domains-seziures-111117/
  14. 14.   14  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 viewsglobally.62Under this definition63, an Internet site is an ‘‘Internet site dedicated to theft ofU.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 theInternet site, and the owner or operator of the Internet site, are not located and cannotbe 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 onlylimited purpose or use other than, or is marketed by its operator or another acting inconcert with that operator primarily for use in, offering goods or services in violationof— (I) section 501 of title 17, United States Code, [copyright infringement]for purposes of commercial advantage or private financial gain, and with respect toinfringement of complete or substantially complete works;(II) section 1201 of title 17, United States Code [circumvention ofcopyright protection systems]; or(III) provisions of the Lanham Act that prohibit the sale, distribution, orpromotion of goods, services, or materials bearing a counterfeit mark, as thatterm is defined in section 34(d) of the Lanham Act (15 U.S.C. 1116(d)) orsection 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 haspromoted, its use to carry out acts that constitute a violation of section 501 or 1201 oftitle 17, United States Code, [Copyright infringement or the circumvention ofcopyright protection systems] as shown by clear expression or other affirmative stepstaken to foster such violation.Some clarifications are needed:-­‐ Firstly, the manager’s amendment has removed references to “a portion thereof” of theU.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                                                                                                                58Bianca Bosker, Facebook IPO Filing Reveals Its Stunning Size: A Private Jet, $1 Billion In Profits, AndMore, HuffpostTech (Feb. 01, 2012), http://www.huffingtonpost.com/2012/02/01/facebook-ipo-filing-revea_n_1248434.html59http://en.wikipedia.org/wiki/Main_Page (last visited March 19, 2012).60Todd Wasserman, Twitter Says It Has 140 Million Users, Mashable (March 21, 2012),http://mashable.com/2012/03/21/twitter-has-140-million-users/61Robin 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/62http://www.youtube.com/t/press_statistics (last visited March 19, 2012). Another intriguing fact concerningSOPA is that 70% of YouTube traffic comes from outside the U.S.63Amendment 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.
  15. 15.   15  “Internet site” may include a specifically identified portion of such site.”64As a result,the “portion of such site” is now included in every reference to an internet site65andno guidelines are provided on how to resolve a case when the only way to take anaction against the infringing portion is to take action against the website as a whole.66In 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” ifit 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 theconsequence that a site operated by a U.S. company with a domain name registered to aforeign country code top level (e.g. YouTube.be [Belgium]) domain is a “foreign Internetsite.”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 siteseems, 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 wonderfullyelastic words — notice the ever-longer yet still ‘limited’ copyright terms granted to artistsand creators?.”68As suggested by a Ryan Radia, “this section of SOPA would be moreclear if it relied on the “capable of substantial non-infringing uses” test originallyarticulated 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                                                                                                                64Amendment in the nature of a substitute to H.R. 3261 offered by Mr. Smith of Texas 7, lines 17-19.65The M.A., Sec. 104(a) explains how the order of such an action needs to be concise to that portion.66Net coalition, supra note 38.67See the analysis of the definition: “Sites that are “dedicated to the theft of U.S. property” are defined toinclude a “U.S. directed site”, see Amendment 26, line 17, which is limited to certain “foreign Internet sites,” seeAmendment 9, line 19, which are in turn defined to be sites that are not domestic Internet sites, see Amendment5, 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 theUnited States. See Amendment 4, lines 8-10”: Net coalition, supra note 38.68Rob 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
  16. 16.   16  copyright infringement cases.”69Again, intentionally or not, this bill encompasses toobroad of a definition.The second prong of the definition focuses on the operator of the site. The trademarkinfringement is not a hypothesis in this case.-­‐ Thirdly, a “Qualifying Plaintiff”70(or rights holders) can bring an in personam or inrem civil action against a site dedicated to the theft of U.S. property. Another actionagainst payment service providers and Internet advertising services is also availablefor the “Qualifying Plaintiff”. The procedure is quite similar to the section 102, withall the negative consequences attached to it, in particular the fact that these actions aretaken without any prior judicial determination of infringement.71-­‐ Fourthly, the definition also “does not distinguish between sites with a highprobability of episodic or occasional uses for infringement and sites that are mostlikely used largely for infringement.”72-­‐ Finally, while section 102 included a provision stating SOPA will not affect theDMCA safe harbor provisions for foreign websites, no such savings clause appears inthe 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 SOPA’s vagueness may be seen by some commentators as an appropriatephenomenon, Robert Bork correctly stated that “[People] should be very worried wheneverthe Congress is pondering vague, open-ended statutes, particularly when they implicate thefast moving world of technology.”73If Congress wanted to amend the DMCA to strike abetter balance between the competing interests of the different stakeholders (end users,                                                                                                                69Ryan Radia, supra note 52.70Amendment 28, lines 6-9.71Tyler G. Newby and Mitchell Zimmerman, SOPA and PIPA deconstructed—the meaning of key provisions ofthe controversial anti-piracy legislation, AIPLA (March 30, 2012),http://www.lexology.com/library/detail.aspx?g=5a67ee45-0c33-4a6f-9882-8a3121ca48a1&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+Federal+section&utm_campaign=Aipla+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2012-04-11&utm_term=72Id.73Ryan Radia, supra note 52.
  17. 17.   17  copyright owners and website operators), the proper would be to reform the DMCA itselfrather than circumvent this balance via SOPA. Indeed, the “[DMCA] promotes an“innovation without having to ask permission” environment that has made the U.S. Internetsector the most successful sector in the world. This is due in no small part because of thebalanced legal framework Congress created at the start of the commercial Internet. Venturecapitalists and other investors know that they will have certainty that a website that allowsuser-generated content will not be in legal jeopardy as it satisfies the safe harbor conditions inthe DMCA. Unfortunately, a site that enjoys the DMCA safe harbor could nonetheless betargeted by termination notice and held liable under SOPA. That is because the new liabilitiescreated by SOPA do not have an exception that protects lawful U.S. sites that are compliantwith the DMCA’s notice-and-takedown requirements.”74c. A temporary suspension?As it will be discussed hereafter, on January 18, 2012 the Internet experienced the largeststrike in history to stop PIPA and SOPA. Two days after, on January 20, Congress shelved thevotes on the anti-piracy bills. Just like the bills were proposed, Senate Majority leader HarryReid firstly announced the postponement of PIPA. A couple of hours after, Lamar Smith, theRepublican chairman of the House Judiciary committee, followed suit, saying that he woulddelay action on SOPA until there is a wider agreement.75Now the question remains: is a bill the best solution against online piracy/copyrightinfringement? Is the United States Congress capable of creating a “remedy” that will cure thisworldwide disease? If so, what is the solution? Without offending Congress efforts, offering                                                                                                                74Net coalition, supra note 38.75SOPA 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-google-wikipedia-and-others/2012/01/20/gIQAN5JdEQ_story.html and Timothy B. Lee, Internet wins: SOPA and PIPAboth shelved, Ars technical, http://arstechnica.com/tech-policy/news/2012/01/internet-wins-sopa-and-pipa-both-shelved.ars (last visited March 7, 2012).
  18. 18.   18  the copyright content on the Internet and in the real world at the same time appears to be theonly 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 legalwebsites. The last example in the United States, Spotify, is the kind of software that the movieindustry should make, instead of protesting against online piracy. Although the US servicewas launched in July 2011, the success of Spotify became more powerful at the end ofSeptember 2011 when Facebook announced at its F8 conference, the integration in his socialmedia of what can become the Worlds Best Music Service. The idea is not entirely newbecause similar services such as Mflow, Grooveshark, Deezer or MySpace Music alreadyexisted before. However, none of them can compete with the quantity, quality and diversity ofmusic on Spotify. How is it exactly working? It is remarkably easy. An Internet user has todownload the software on the website and with your Facebook account, it will take only a fewseconds to access to this incredible music-streaming service. With some advertisements toremunerate 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 tomusic 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 dealtwith in the case of Google Books, the book services on the Internet are really affordable anddo not encourage piracy.The movie industry is certainly not comparable to the 500 legitimate music services in 78countries.76The question remains “why”? In a video, Fred Wilson explained the current                                                                                                                76For a complete list, see http://www.ifpi.org/content/library/DMR2012.pdf (last visited March 7, 2012).
  19. 19.   19  situation: “(…) When 99 percent of the citizens of the world are breaking the law, thequestion is, is this the right law? Everybody is a pirate. Everybody is a pirate. (…) It is hardnot to be a pirate in this world. When I talk to my kids about this, they cannot imagine aworld where the content sites that they use aren’t available because that is how they get thecontent. (…) We’ve got to fix the system so that the content is available legally on theInternet in a way that is convenient for people to consume it. As convenient as turning onyour TV and watching HBO. That’s how convenient it has to be. The content industry has notmade this content convenient to access on the Internet and as a result everybody — and Imean everybody — is a pirate”77Wilson said.In conclusion, as long as the Congress will try to pass Internet censorship bills like PIPA andSOPA, the current situation will remain the same. Based on the significant facts with themusic industry, it is time to allow the Internet users to have access to the content they piratedon the Internet, most principally movies, at reasonable price, instead of creating anti-democratic-piracy bills. For instance, the Netherlands and Switzerland,78when dealing withdownloading music and movies, represent a real example of democracy where lobbying arenot part of the legal discussion. In the Swiss report, “the overall suggestion the Swissgovernment communicates to the entertainment industries is that they should adapt to thechange in consumer behavior, or die. They see absolutely no need to change the law becausedownloading has no proven negative impact on the production of national culture.”79Thesame conclusion that downloading music and movie have to stay legal was adopted in theDutch Parliament.80Today, even if SOPA and PIPA are “only” shelved, the probability to seethese bills reintroduced is small, not to say impossible. The future is in another bill, perhapsthe OPEN Act.                                                                                                                77Media Council, Protecting Content and Promoting Innovation in a Digital World: A Post-SOPA/PIPAConversation, February 14, 2012, http://www.paleycenter.org/mc-breakfast-post-sopa-pipa-dialogue78Der Bundesrat, Urheberrechtsverletzungen im Internet: Der bestehende rechtliche Rahmen genügt (Nov. 30,2011), http://www.ejpd.admin.ch/content/ejpd/de/home/dokumentation/mi/2011/2011-11-30.html79Enigmax & 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-111202/80Id.
  20. 20.   20  2. Online Protection and Enforcement of Digital Trade (OPEN Act)a. IntroductionThe creation of a digital copyright legislation is extremely hard these days, especially sincethe “Internet blackout” of January 18, 2012 in reaction to the controversial bills SOPA andPIPA. As an interesting fact, the Open Act81was introduced by Rep. Darrell Issa (R-California) in the U.S. House of Representatives on the same day as the World Internetprotest. The aim of the Act is to “to amend the Tariff Act of 1930 to address unfair tradepractices relating to infringement of copyrights and trademarks by certain Internet sites, andfor other purposes.”82What is exactly the content of this bill and how it differs from PIPAand SOPA will be analyzed hereafter.b. Comparison between SOPA, PIPA and the OPEN Acti. Similarities between the actsThe comparison between SOPA, PIPA and the OPEN Act is essential because all these threebills attempt to address the problem of foreign websites, better known as rogue websites, thatare offering either copyright or trademark content by placing new law enforcementresponsibilities on U.S. intermediaries. These bills also involve a three-step process, but thedetails of the OPEN Act vary significantly from SOPA and PIPA. The steps can be describedas follow:-­‐ Firstly, there is a proceeding against an Internet website or domain name. The OPENAct will “apply only to foreign websites that willfully promote copyrightinfringement.”83-­‐ Secondly, if a website is found to be rogue, the order to terminate the service will beserved on a U.S. intermediary.-­‐ Finally, if the U.S. intermediary does not comply, there is an enforcement process.                                                                                                                81An Act for online protection and digital trade, H.R. 3782, 112thCong. (2012),http://www.gpo.gov/fdsys/pkg/BILLS-112hr3782ih/pdf/BILLS-112hr3782ih.pdf82Id.83Winthrop & 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
  21. 21.   21  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, theAttorney General can bring an action (in rem or in personam) in federal court. Then, threecategories of intermediaries must take an action in response to order: search engines, paymentsystems and advertising networks. On the other hand, a private right action can be taking bythe “qualifying plaintiff”. Here, the intermediaries can take only two actions regarding thepayment system and advertising networks. The provision is similar under PIPA.In the OPEN Act, it is the United States International Trade Commission (ITC) that instigatesproceedings against “Internet site dedicated to infringing activity”.84The bill defines it asfollows:(A) IN GENERAL---The term Internet site dedicated to infringing activity means anInternet 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 activityand whose owner or operator primarily uses the site to‘‘(I) to willfully—‘‘(aa) infringe a copyright in a manner punishable under section 506 oftitle 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) ofthe Lanham Act (15 U.S.C.1116(d))(B) BUSINESS DIRECTED TO RESIDENTS OF THE UNITED STATES. Forpurposes of determining whether an Internet site conducts business directed toresidents of the United States under subparagraph (A)(ii), the Commission mayconsider, among other indicators, whether(i) the Internet site is providing goods or services to users located in theUnited States;(ii) there is evidence that the Internet site is not intended to provide goodsand services to such users or access to or delivery of goods and services tosuch users;(iii) the Internet site has reasonable measures in place to prevent goods andservices provided by the Internet site from being accessed from ordelivered 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 areindicated in the currency of the United States.                                                                                                                84H.R. 3782 4, lines 14-25; 5, lines 1-10.
  22. 22.   22  (C) EXCLUSIONS. An Internet site is not an Internet site dedicated to infringingactivity(i) if the Internet site has a practice of expeditiously removing, or disablingaccess to, material that is claimed to be infringing or to be the subject ofinfringing activity after notification by the owner of the copyright ortrademark alleged to be infringed or its authorized representative;(ii) because the Internet site engages in an activity that would not make theoperator liable for monetary relief for infringing the copyright undersection 512 of title 17, United States Code; or(iii) because of the distribution by the Internet site of copies that weremade without infringing a copyright or trade mark.After the filing of the complaints to the U.S. International Trade Commission, and based onthe information the rights holders should provide to initiate an investigation, the ITC willinvestigate the complaints and decide whether U.S. payment processors and onlineadvertising networks should be required to cut off funding.85Accordingly, only twocategories of intermediaries play a role in this step. Moreover, there is no private right ofaction.Additional comments can be added:-­‐ As already mentioned, PIPA and SOPA would enable content owners to take down anentire website, even if just one page on it carried infringing content. They alsoimposed 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 thesewebsites should not be taken lightly.-­‐ The OPEN Act is available on the Internet for a democratic discussion. Internet usersare free to drop and add provisions and express their positions and/or concerns aboutvarious issues. This situation was not considered with SOPA and PIPA.                                                                                                                85Grant 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_representatives.html?tk=rel_news86Christina 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
  23. 23.   23  -­‐ With PIPA and SOPA, there are also some concerns about the impact on onlinefreedom of speech and freedom of expression and, consequently, a violation of theFirst Amendment.87These concerns are not present in the OPEN Act.c. ConclusionThis new bill appears to be a decent middle ground for curbing online piracy while PIPA andSOPA were more concerned with over-reaching solutions.88Even if some small concerns arepresent, the OPEN Act seems to have realized the problems of these two predecessors and thedifficulties of creating legal solutions in the Internet world.                                                                                                                87For some comments about the impact on the first amendment, see Jerry Brito, Congresss Piracy BlacklistPlan: A Cure Worse than the Disease? (Nov. 7, 2011), http://techland.time.com/2011/11/07/congresss-piracy-blacklist-plan-a-cure-worse-than-the-disease/#ixzz1eG1bPxLM; Cynthia Wong, US Piracy Law Could ThreatenHuman Rights (Nov. 18, 2011), https://www.cdt.org/blogs/cynthia-wong/1811us-piracy-law-could-threaten-human-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=188Grant Gross, supra note 85.
  24. 24.   24  3. The Cyber Intelligence Sharing and Protection Act (CISPA)While the OPEN Act appeared to be a decent compromise after the current failure of SOPAand PIPA, The Hill is now discussing a new method to prevent cyber-attacks.89The H.R.352390, better known as Cyber Intelligence Sharing and Protection Act (CISPA), wasintroduced by Rep. Mike Rogers in the House of Representatives in November last year. Theaim of the bill is “to provide for the sharing of certain cyber threat intelligence and cyberthreat information between the intelligence community and cybersecurity entities, and forother purposes.”91    The medias already see CISPA as the new SOPA Bill, worse and with the same (assumed?)idea of censoring the web.92CISPA “does nothing of the sort, and aims more at cyber threatintelligence gathering than censorship and piracy prevention.”93However, the bill has twicethe support SOPA ever had with 106 co-sponsors.94Nevertheless, this bill is not withoutfundamental issues.  -­‐ Firstly, some argue that “unlike SOPA and PIPA, CISPA is all about collecting andsharing “cyber threat intelligence” and has less to do with copyright infringementconcerns.”95This is not totally true. The definitions “cyber threat intelligence”96and                                                                                                                89Anne 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/90An Act for Cyber Intelligence Sharing and Protection Act of 2011, H.R. 3523, 112thCong. (2011-2012),http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.352391Id.92Worse 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.be93Stephen C. Webster, Sequel to SOPA could see NSA spy on journalists, media pirates, The Raw Story (April5, 2012), http://www.rawstory.com/rs/2012/04/05/sequel-to-sopa-would-see-nsa-spy-on-journalists-media-pirates/94Andrew Couts, Watch out, Washington: CISPA replaces SOPA as Internet’s Enemy No. 1, Digital Trend(April 5, 2012), http://www.digitaltrends.com/web/watch-out-washington-cispa-replaces-sopa-as-internets-enemy-no-1/ ; for a complete list of companies and groups (like Facebook and IBM) that support CISPA, seehttp://intelligence.house.gov/bill/cyber-intelligence-sharing-and-protection-act-201195David Banks, supra note 89.96H.R. 3523, sec. 2(f)(2).
  25. 25.   25  “cyber threat information”97use vague terms, like SOPA and PIPA, which are notspecified in the bill. One of these terms is “intellectual property”. For instance, “cyberthreat information” is defined as the following:  Information directly pertaining to a vulnerability of, or threat to a system ornetwork of a government or private entity, including information pertaining tothe 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 (emphasisadded).As a consequence, the “bill would empower the NSA [National Security Agency] to spy onthe whole world in search of individuals engaging in distribution of protected media, likeInternet 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 thatpossibly will be interpreted in ways that could infringe on our civil liberties.99The Center for Democracy and Technology (CDT) summed up the situation:“The bill has a very broad, almost unlimited definition of the information that can beshared with government agencies notwithstanding privacy and other laws; the bill is likelyto lead to expansion of the government’s role in the monitoring of privatecommunications as a result of this sharing; it is likely to shift control ofgovernment cybersecurity efforts from civilian agencies to the military; Once theinformation is shared with the government, it wouldn’t have to be used for cybesecurity,but could instead be used for any purpose that is not specifically prohibited.”100                                                                                                                97H.R. 3523, sec. 2(f)(6).98Stephen C. Webster, supra note 93.99Andrew Couts, supra note 94.100Greg 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
  26. 26.   26  -­‐ Finally, based on the concerns of the CDT, there is a violation of a fundamental rightto online privacy.101In conclusion, it is difficult to predict how the bill will be interpreted. While CISPA was notprimarily focus on Intellectual property law, but more as an amendment of the NationalSecurity Act of 1947,102the “inclusion of “intellectual property” in the bill [probably] meansthat companies and the government would have new powers to monitor and censorcommunications for copyright infringement.”103                                                                                                                101Even worse than SOPA: New CISPA cybersecurity bill will censor the Web, RT (April 4, 2012),http://rt.com/usa/news/cispa-bill-sopa-internet-175/102An Act for Cyber Intelligence Sharing and Protection Act of 2011, supra note 90.103Andrew Couts, supra note 94.
  27. 27.   27  4. ACTA, temporarily dead?a. IntroductionSince October 2007, 39 countries (Australia, Canada, the European Union and its 27 MemberStates, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the UnitedStates104) are secretly negotiated this Anti-Counterfeiting Trade Agreement (ACTA).105Disguised as a trade agreement, its goal is to establish an international legal framework fortargeting counterfeit goods, generic medicines and copyright infringement on the Internet.106More globally, it is an « international trade agreement that will help countries work togetherto tackle more effectively large-scale Intellectual Property Rights violations.”107In fact, it isanother offensive against the sharing of the culture on the Internet.108Currently, ACTA can only be “killed” by the Europe Union (EU). Indeed, in the rest of theworld, Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea and theUnited States have signed ACTA.109Things are more difficult with ratification in Europe.Within the EU institutional process, European Commission – which held the executive powerof the EU - has already passed ACTA to national governments for ratification. Before theTreaty may be adopted, both European legislative authorities, the Council of the EuropeanUnion and the European Parliament, need to consent to ACTA. The Council of European                                                                                                                104For a comment on the implementation of ACTA in the United States, see Khaliunaa Garamgaibaatar, TheAnti-counterfeiting trade agreement: copyrights, intermediaries, and digital pirates, 20 CommLaw Conspectus199 (2011); Margot E. Kaminski, An overview and the revolution of the anti-counterfeiting trade agreement, 21Alb. 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 betweenTrips 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).pdf105http://trade.ec.europa.eu/doclib/docs/2011/may/tradoc_147937.pdf (last visited February 1, 2012).106Heryzo, ACTA: Broader That SOPA, But Yet As “Concerning”, Feb. 24, 2012, http://www.how-to-hide-ip.info/2012/02/24/acta-broader-that-sopa-but-yet-as-concerning/107ACTA - Anti-counterfeiting Trade Agreement, Europa (April 5, 2012), http://ec.europa.eu/trade/tackling-unfair-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).108ACTA, La quadrature du Net, http://www.laquadrature.net/en/ACTA (last visited, April 5, 2012).109Will ACTA Be Killed in the EU? (Sept. 30, 2011), http://www.laquadrature.net/en/will-acta-be-killed-in-the-eu
  28. 28.   28  Union had unanimously approved ACTA last December110and authorized Member States tosign it.111Twenty-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 theratification and announced the process will not be renewed until the end of 2012.112Couple ofdays later, Slovenian Ambassador apologized in public for her signature on the agreement.113Then, just like dominos, Prime Minister of Czech Republic announced he will followPoland and suspend ratification of ACTA.114The same situation occurred in Slovakia,115Latvia116and Slovenia.117This put the whole agreement in doubt.In sum, Germany,118Poland, Slovenia, Bulgaria, Slovakia, Latvia, Estonia, Cyprus, the CzechRepublic and the Netherlands are now opposed to ACTA. Mexico and Switzerland have notyet signed but have participated in negotiations about the treaty.119In January 2012, the European Parliament started working on it and it is come to a close.Despites a lot of comments120and protestations,121numerous issues122are still included in thissecret agreement. For the sake of convenience, we will only focus on 3 of them, namely the                                                                                                                110ACTA Adopted By EU Governments, Now in EU Parliaments Hands (Dec. 14, 2011),https://www.laquadrature.net/en/acta-adopted-by-eu-governments-now-in-eu-parliaments-hands111Statement by Commissioner Karel De Gucht on ACTA (Anti-Counterfeiting Trade Agreement) (Feb. 22,2012), http://trade.ec.europa.eu/doclib/press/index.cfm?id=778112Poland suspends ACTA ratification, Warsaw Business Journal (Feb. 6, 2012), http://www.wbj.pl/article-57880-poland-suspends-acta-ratification.html113Helena Drnovšek Zorko, Why I signed ACTA, http://metinalista.si/why-i-signed-acta/ (last visited March 26,2012).114Nate 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).115Id.116Mike 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-acta-approval.shtml117Slovenia freezes ACTA ratification (March 15, 2012), http://news.yahoo.com/slovenia-freezes-acta-ratification-172718813.html118Karan 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/119Kristina 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-eu-rights.html#ixzz1oXePJxTv120How to act against ACTA, http://www.laquadrature.net/wiki/Attack_ACTA (last visited April 5, 2012).121Against 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).122See Debunking the EU Commissions 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 theFinal Version, La Quadrature du Net (Dec. 9, 2010), http://www.laquadrature.net/en/acta-updated-analysis-of-the-final-version
  29. 29.   29  effect on Intellectual Property rights, the degree of secrecy, and the compatibility with EUtreaties and fundamental rights.b. ACTA’s effect on Intellectual Property rightsOne of the most powerful French advocacy group defending the rights and freedoms ofcitizens on the Internet123, La Quadrature du Net, explained in a short video what are themain concerns about intellectual property law:“Can you imagine your Internet service provider policing everything you do online? Canyou imagine generic drugs that could save lives being banned? Can you imagine seedsthat could feed 1000’s being controlled and withheld in the name of patents? This willbecome reality with ACTA (…). For the past 3 years, ACTA has been negotiated in secretby 39 countries. But the negotiators are not democratically elected representatives. Theydon’t [sic] represent us, but they are deciding laws behind our backs. Bypassing ourdemocratic processes, they impose new criminal sanctions to stop online file sharing.ACTA aims to make Internet Service & Access Providers legally responsible for whattheir users do online turning them into Private Copyright Police & Judge, censoring theirnetworks. The chilling effects on free speech would be terrible (…).”124(emphasis added).Beside the undemocratic character of this trade agreement, ACTA intends to criminalizecopyright 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 theEuropean Commission website125, just in analyzing what is ACTA not about, a particularlylong list in comparison to the list of what is the “trade agreement” about, all the contraryarguments developed in the videotext are cited. For instance, the secret character is clearlydenied. “ACTA is not a “secret” agreement. (…) Like other international trade agreements,and more generally negotiations between different countries, ACTA was discussed in aconfidential manner between the parties, so that partners around the table could freely expressconcerns and expectations”126(emphasis added).                                                                                                                123La Quadrature du Net, Who are we?, http://www.laquadrature.net/en/who-are-we (last visited, April 5, 2012).124Say NO to ACTA, YouTube, Oct. 27, 2011, http://www.youtube.com/watch?v=citzRjwk-sQ125http://ec.europa.eu/trade/creating-opportunities/trade-topics/intellectual-property/anti-counterfeiting/#timeline(last visited February 1, 2012).126Id.
  30. 30.   30  However, the letter sent by 75 law profs to the U.S. President in October 2010 explains howthe negotiations were conducted.“ (…) Behind closed doors, subject to intense but needless secrecy, with the publicshut out and a small group of special interests very much involved. (…) the firstofficial release of a draft text took place only in April, 2010. And following thatrelease the USTR has not held a single public on-the-record meeting to invitecomments 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 isunacceptable, unwise, and directly undercuts your oft-repeated promises of opennessand transparency. (…) The Administration’s determination to hide ACTA from thepublic creates the impression that ACTA is precisely the kind of backroom specialinterest deal – undertaken in this case on behalf of a narrow group of U.S. contentproducers, and without meaningful input from the American public – that you have sooften publicly opposed”127(emphasis added).Professor of Law Michael Geist has reiterated this fact in a recent appearance beforeEuropean Parliament by emphasizing that “ACTA’s opaque approach was not “an acceptedpractice”, but was rather out-of-step with many other global norm-setting exercises. TheWTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference onPrivate International Law, and an assortment of other conventions were all far more open thanACTA.”128Kader Arif, the European Parliaments rapporteur for ACTA, who resigned fromits post at the end of January, expressed the lack of transparency.129                                                                                                                127Over 75 Law Profs Call for Halt of ACTA, http://www.wcl.american.edu/pijip/go/blog-post/academic-sign-on-letter-to-obama-on-acta (last visited, March 8, 2012).128Michael Geist, Assessing ACTA: My Appearance Before the European Parliament INTA Workshop on ACTA(March 1, 2011), http://www.michaelgeist.ca/content/view/6350/125/129Desmond 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-of-transparency/. “This agreement may have a major impact on the lives of our citizens, and yet everything is doneso that the European parliament has no say," Arif said. "I will not participate in this charade."
  31. 31.   31  d. Compatibility with EU treaties and fundamental rightsWith a treaty, when the main concerns are political by nature, the European Commissionneeded to act as a democratic authority. At the end of February, the intent of to ask theEuropean Court of Justice (ECJ) for an opinion on the conformity of ACTA with fundamentalrights and freedoms (including freedom of expression and information) was finallyannounced.130This demonstrates the possibility to move the debate from the political to thelegal sphere and allowing a Europe’s top court to independently clarify the legality of thisagreement.131The question, which is a mere rephrasing of article 218.11 of the Treaty on the Functioning ofthe EU132, is quite obvious: Is the Anti-Counterfeiting Trade Agreement (ACTA) compatiblewith the European Treaties, in particular with the Charter of Fundamental Rights of theEuropean Union?133Now, the European Court of Justice must take a decision.In order to buying time, the European Parliament announced at the end of February that hewill also refer ACTA to the European court of justice, but in a separate case from the one theEuropean Commission has already launched.134However, in March, the European Parliament                                                                                                                130ECJ 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-legitimate131Statement 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)132EU 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).133European Commission, Update on ACTAs 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&guiLanguage=en134David 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-causing-new-delay-10025511/
  32. 32.   32  changed his mind, decided not to freeze ACTA for 18 months and to stick to its calendar.135The Parliament is expected to vote in June, at its plenary session.136As explained in the videotext, one of the main issues under ACTA is that “internet providerswould have to cooperate with governments to crack down on online piracy, via measures suchas cutting off Internet access for those who have illegally downloaded music or other files.”137Aware that piracy and counterfeiting are serious problems affecting the world, ACTA’s rulesare, however, extremely strict.e. ACTA approval postponed: for now or forever?After the “Internet Blackout” in January, the European citizens were conscious that it waspossible to put pressure on Governments to show that the Internet of the future will not beconsidered 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 Commissionerfor International Trade Karel De Gucht managed some time to delay the procedure by one ortwo years138as developed before.As it was already the case with SOPA and PIPA, it is a democracy victory for the Europeancitizens and for the protection of online freedoms. Now, the European Court of Justice willplay a significant role in the ratification of ACTA.                                                                                                                135La 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).136EU 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, Letterto Members of the EU Parliament: ACTA ECJ Referral/Interim Report. EP Must Face its PoliticalResponsibility, http://www.laquadrature.net/files/20120323_ACTA_EC_Referral__Interim_Report.pdf (lastvisited April 6, 2012).137Kristina Chew, supra note 119.138A Strategy Looking Through ACTA and Beyond, La Quadrature du Net, http://www.laquadrature.net/en/a-strategy-looking-through-acta-and-beyond (last visited March 20, 2012).
  33. 33.   33  5. The “Internet Blackout”Based upon diverse concerns that SOPA would bypass the “safe harbor” protection of theDMCA as discussed before, censorship the Internet, and violate the first amendment, for thefirst time in the Internet history, we saw a massive revolution from the Internet users andimportant Web 2.0 websites. The “Internet blackout” will certainly remain an example of thebiggest Internet support ever. A few days later, on the other side of the Atlantic, the EuropeanUnion citizens also organized an enormous manifestation in the 27 countries to protest againstACTA.As a consequence of this “revolution”, U.S. Congress was forced to set aside SOPA andPIPA. To make sure that the Internet Age evolves in a manner compatible with thedemocracy139, these acts must not remain isolated, but, on the contrary, have to prove that theabuse of power has no place in a democracy.a. January 18, 2012: the world against PIPA/SOPAThe largest online strike that occurred a few months ago, clearly showed a first and importantvictory of the Internet against Hollywood-backed Congress. In the United States, Wikipediawas the prominent protester and made a huge impact with a 24-hour outage.140The websitequoted that “more than 162 million people saw our message asking if you could imagine aworld without free knowledge.”141Wikipedia tried to explain to the Internet users theimportance of the Internet and the impact of repressive bills. The website explained that “forover a decade, [they] have spent millions of hours building the largest encyclopedia in humanhistory. Right now, the US Congress is considering legislation that could fatally damage thefree and open Internet. For 24 hours, to raise awareness, we are blacking out Wikipedia.”142                                                                                                                139Amy Goodman, Internet Censorship Affects Everybody”: Rebecca MacKinnon on the Global Struggle forOnline freedom, Thurt-Out.org (Jan. 18, 2012), http://www.truth-out.org/internet-censorship-affects-everybody-rebecca-mackinnon-global-struggle-online-freedom/1326910185140Justin 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-59332/141http://wikimediafoundation.org/wiki/SOPA/Blackoutpage (last visited March 7, 2012).142http://wikimediafoundation.org/wiki/SOPA/Blackoutpage (last visited March 7, 2012).
  34. 34.   34  Reddit, Craigslist and the black patch across the Google logo were other examples ofprotestation. Other everyday websites such as Twitter and Facebook143did not join the onlinestrike. Even if sometimes words can speak louder than action, this may demonstrate that theywere not too much concerned by PIPA and SOPA, whereas Facebook, for instance, wastargeted by these bills.Some other statistics also shown how technology community and social media expression areextremely significant. Twitter saw more than 2.4 millions SOPA-related Tweets in 4 hours144,while 4.5 million people signed Googles anti-SOPA/PIPA petition, according to the LosAngeles Times.145The people also shown their discontent through international protestmovement such as The Occupy Movement and Anonymous Group. Especially the latter wasomnipresent in the media because of, among other things, its operations involving distributeddenial of service (DDoS) “attacks” to government’s websites such as the United StatesDepartment of Justice and the FBI146, but also through solidarity campaigns, like “One daywithout the 99%”147and “Our Polls”.148Finally, 25 Senators now oppose PIPA according toOpenCongress.149However, this strike by Google and Wikipedia was seen as to be an “abuse of trust and amisuse of power”150by some people and in particular Cary H. Sherman, Chairman and CEO                                                                                                                143Mike 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/144Twitter(@twitter). “2.4+ million SOPA-related Tweets from 12am-4pm ET today. Top 5 terms: SOPA, StopSOPA, PIPA, Tell Congress, #factswithoutwikipedia”.”18 Jan 12, 7:37 PM. Tweet.145Google 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 AngelesTimes, http://latimesblogs.latimes.com/technology/2012/01/sopa-blackout-how-many-have-joined-the-fight.html, (last visited March 20, 2012).146Andrew Couts, Anonymous, Occupy launch ‘Our Polls’ campaign against SOPA, PIPA, NDAA supporters inCongress, Digital Trends (Feb. 27, 2012), http://www.digitaltrends.com/social-media/anonymous-occupy-launch-our-polls-campaign-against-sopa-pipa-ndaa-supporters-in-congress/147On May 1, 2012 will be a day without the 99%: No Work, No School, No Housework, No Shopping, NoBanking for a people’s general strike, http://www.occupymay1st.org/ (last visited March 26, 2012).148This campaign “targets members of Congress who supported a variety of bills [Occupy Movement andAnonymous] groups find particularly offensive. Namely: the Stop Online Piracy Act (SOPA), the PROTECT IPAct (PIPA), and the National Defense Authorization Act (NDAA)”: Andrew Couts, supra note 146.149Protect IP Act Senate whip count, http://www.opencongress.org/wiki/Protect_IP_Act_Senate_whip_count(last visited, March 20, 2012).150Cary H. Sherman, What Wikipedia Won’t Tell You, The New York Times (Feb. 7, 2012),http://www.nytimes.com/2012/02/08/opinion/what-wikipedia-wont-tell-you.html