A lot of congress’ time lately has gone to drafting, revising, and negotiating legislation that in some way shape or form controls America’s ability to access content on the Internet. You have likely heard about SOPA, PIPA, and maybe even OPEN—but how does this legislation apply to game developers, and why have these pieces of legislation created such dissention? This FAQ clarifies the details about these bills and how they affect game development.

1.       So what are SOPA, PIPA, and OPEN?

The “Stop Online Piracy Act” (SOPA) and the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act” or the “PROTECT IP Act”(PIPA) are corresponding pieces of legislation that are currently before the House of Representatives and Senate, respectively. Both Acts grant the Attorney General the power to force payment providers, advertisers, search engines, and DNS registries to block access to foreign sites dedicated to infringement. The Acts also give private parties the right to obtain court orders against infringing sites—upon obtaining a court order, private rights holders can turn around and, like the Attorney General, force payment providers and advertisers to cease providing services to the allegedly infringing site. SOPA also imposes criminal penalties for streaming content that’s deemed infringing.

The “Online Protection and Enforcement of Digital Trade Act” (OPEN Act) is a counter-measure to SOPA and PIPA and is currently before both the House and Senate. The OPEN Act puts prosecution power against foreign “rogue sites” in the hands of the United States International Trade Commission. Upon receiving a complaint, the Commission will undergo an investigation to determine whether a site’s sole or primary purpose is an infringing one. Unlike SOPA and PIPA, the penalties to rogue sites are purely financial—the Commission can issue Cease and Desist orders to payment providers and advertisers to cease operations on the rogue site, but there is no corresponding cease and desist forcing search engines or DNS registries to redirect or block access to the site. The owner of the rogue site has an opportunity to raise their defense prior to the Commission’s issuance of Cease and Desist Orders.

2.       How do SOPA and PIPA threaten the games industry and game development?

Out of all of the entertainment industries, game development will probably be the most affected if SOPA or PIPA become law. Games rely on the Internet for everything from getting player feedback to promoting their content. So how could the games industry suffer if SOPA or PIPA pass?

•  Fan-based communities that permit users to post videos or fan-created content will be at serious risk of totally shutting down even in minor cases of infringement by its community members.
• Funding opportunities like KickStarter, which enable small-time developers to create content without relying on a major publisher, are at risk of shutting down if even one project is suspected of infringement.
•  Digital distribution channels (we’ve already seen what happened to MegaUpload), including Steam and Impulse, would also be at risk for the same reason.
• Online games and online game communities would be subject to the same threats as those websites threatened by SOPA and PIPA.
• Games in particular are affected by any Act that threatens freedom of speech—especially when that threat comes from private parties asserting IP rights. The opportunity to use such legislation to censor content for motives other than those set forth in the Act is high.

Game developers both large and small rely heavily on digital distribution and their fans. Both SOPA and PIPA pose a direct threat to distribution channels and online communities in particular.

3.        What makes SOPA and PIPA dangerous?

SOPA and PIPA are dangerous for a few reasons:

• Both Acts use vague, ill-defined language to identify both foreign sites and sites dedicated to infringement;
• Both Acts give search engines, DNS registries, payment providers, and advertisers clear incentive to proactively block websites even before receiving a court order—a private party/competitor could send a notice to those service providers claiming infringement, thereby giving those service providers the “good faith” belief they need to act in order to protect their immunity. This is particularly problematic if, say, an ISP is also a content provider. It gives them both the power and the incentive to censor their own competitors;
• SOPA expressly criminalizes streaming content that contains infringing material—this could be anything from a fan-made game play video that has infringing music playing in the background to an infringing copy of a music video. Sites hosting that streamed content are subject to the blocking provisions set forth in SOPA (including internet community forums and sites like YouTube);
• Both Acts pose a threat to constitutional rights like freedom of speech and due process. With regard to freedom of speech, the method of blocking and redirecting sites is a model traditionally used for purposes of censorship in more restrictive countries—even if the purpose of the Act is different, there is no question that the censorship of perfectly legal content is a possibility thanks to the incentives created by both Acts. As for due process, court orders are obtained ex parte and action can be taken against a website regardless of whether the website owner has actual notice—in other words, a website can be blocked or redirected without giving the owner an opportunity to raise a defense.
• Many experts believe that the method DNS registries and registrars would have to use to redirect or block websites undermines Internet security.

Opponents of both Acts have raised a number of other complaints citing various problems, but most arguments shake down to the fact that the Acts provide a legal arsenal to censor perfectly legitimate content.

4.       How is the OPEN Act any different?

OPEN isn’t perfect, but it is a vast improvement to both SOPA and PIPA for several reasons:

• Private causes of action are eliminated—private parties must submit a complaint to the International Trade Commission, which will then investigate the site and make a determination as to whether it is infringing;
• It expressly protects websites that act in compliance with the DMCA Safe Harbors;
• Sites aren’t blocked or redirected and enforcement is based purely on financial incentives. Cease and desist orders are issued to payment providers and advertisers to terminate financial support to rogue sites;
• Prior to issuing Cease and Desist orders, the Commission provides the owner or operator of the allegedly infringing site an opportunity to raise any available defenses;
• The Act discourages groundless complaints by requiring complainants to post a bond for preliminary injunction orders.

There are other marked difference between the OPEN Act and SOPA/PIPA, but there are some similarities as well. Some of the language used, particularly definitions, are similar to those we see in SOPA/PIPA. However, the OPEN Act is likely a step in the right direction to shut down foreign piracy sites without catching innocent non-infringers in the same net.

5.       Aren’t SOPA and PIPA already dead?

No. Both acts still have substantial congressional backing and financial support from the MPAA, RIAA, and other supporters. Although the opposition has increased and both Acts seem to be shelved for the immediate future, there is still a possibility that either Act will become law or will be re-presented in another form. Even if both Acts fail, there is a high probability that future legislation closely resembling those acts will appear before congress again—after all, they themselves are reincarnations of an earlier bill, the “Combating Online Infringement and Counterfeits Act” (COICA).

6.       So what can I as a game developer or fan do to stop this kind of legislation?

Simply being aware of the problem isn’t enough. Opponents to these and similar bills should contact their representatives and request that they withdraw support from bills that threaten a free and open Internet.