Nov 222011
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Tumblr went so far as to blackout their entire dashboard

With the hearings this morning (more on that later), there were also more statements publicly made against SOPA this morning. Two key ones are, unfortunately, behind Politico’s paywall, so I can’t link or quote too much. The first, by former Homeland Security Assistant Secretary and former NSA General Counsel, Stewart Baker, was raised a few times during the hearings. Baker focused on the problems of SOPA and PROTECT IP and their impact on online security. He notes that the DNS blocking portions of both bills “run directly counter” to the government’s cybersecurity efforts:

Because “block and redirect” is exactly what crooks are doing today to bank customers. If the bills become law, the security system won’t be able to tell the difference between sites that have been blocked by law and those that have been sabotaged by hackers. Indeed, it isn’t hard to imagine crooks redirecting users to sites that say, “You were redirected here because the site you asked for has violated copyright,” while at the same time planting malware on the user’s computer.

There’s much more in the article as well, noting that these laws won’t actually help Hollywood and will “leave the rest of us hurting and poorer for years.” The really tragic part of the hearing is that when all of the panelists were asked about Baker’s statement, every single one of them admitted that they didn’t understand the technology enough to really comment. The best that the MPAA’s Michael O’Leary could blurt out was that he “didn’t agree.”

The second interesting piece at Politico comes from famed Constitutional scholar Laurence Tribe, who more or less acts as a counterweight to Floyd Abram’s letter. He basically highlights all of the problems we’ve discussed over the past few weeks: vague definitions, broadly targeted, will impact perfectly legitimate sites. And, he notes clearly: “It would violate the First Amendment.”

A key provision of the bill would give copyright owners the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice that the site is “dedicated to the theft of U.S. property” — even if no court has actually found any infringement.

The immunity provisions in the bill create an overwhelming incentive for advertisers and payment processors to comply with such a request immediately upon receipt. Courts have always treated such cutoffs of revenue from speech as a suppression of that speech, and the silencing of expression in the absence of judicial review is a classic prior restraint forbidden by the First Amendment.

Just as we have said in the past. It seems that more and more lawyers are making this point. So far, the pro-SOPA side has Floyd Abrams. He’s respected, sure, but so is Tribe and so are many of the other lawyers who have questions SOPA’s impact on the First Amendment.

Lots of internet companies have come out against the bill as well. Reddit and Tumblr both joined with American Censorship Day, blocking out parts of their site. Tumblr went so far as to blackout their entire dashboard. Along with them Kickstarter and FourSquare both spoke out against the bills as well. These are all platforms that content creators today rely on to create, connect, promote, distribute and monetize their works. In other words, these are the platforms of the future — the platforms that could be crippled with legal and regulatory compliance under these bills. Burdening them doesn’t help content creators. It may help the big record labels and the big studios — the ones who don’t want musicians and filmmakers “going direct” via these platforms… but it doesn’t help actual content creators or the public.

Web hosting platform/CDN Cloudflare has weighed in by warning of legal denial of service attacks that would be enabled under the bill: We’ve been seeing a disturbing trend recently. Increasingly, we’re receiving purported DMCA requests that ask us to identify website hosts that are actually from attackers abusing the legal code. If we reveal the requested information, attacks are launched directly at those hosts, bypassing CloudFlare’s protections and knocking legitimate sites offline. Initially, these requests were relatively easy to spot. When we recognized the new attack method, we changed our policies and trained our customer support team to more carefully screen DMCA requests. Increasingly, however, the requests are becoming more sophisticated and difficult to detect.

Imagine the challenge for someone on CloudFlare’s support team. If someone writes to us alleging that they are a photographer who took a picture that appears on a website, or a designer who drew a logo, or an author who wrote some text, how can that claim be verified? I’m an attorney and member of the bar. I teach a course on intellectual property and technology law at the John Marshall Law School. I serve on the Board of the Center for Information Technology and Privacy Law. I’ve reviewed many of these requests and, even with my training in the subject, I have no idea how to effectively and efficiently tell the difference between valid and invalid complaints.

Read more . . .
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