Tag Archive for piracy

The Internet Blacklist Bill FAQ

January 20, 2012 Current Affairs, Intellectual Property, Litigation No comments

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.

UPDATE: SOPA’s Manager’s Amendment and Digital Distribution

January 11, 2012 Current Affairs, Intellectual Property, Litigation No comments

In my previous article on Section 103 of SOPA, I discussed concerns relating to the Act as it was first presented to the House. The Act, however, has undergone a Manager’s Amendment and as a result some of the language cited in the previous article has been removed. Many of the issues discussed in the earlier article have also been addressed.

Some of the salient points of the Amendment:

  • Language such as “website or any portion thereof” has been replaced with simply website or site;
  • Notification procedures by private parties to payment vendors and advertising providers have been removed and replaced by court order procedure;
  • Private parties under Section 103 of the Manager’s Amendment must now seek a temporary restraining order, preliminary injunction, or injunction against the defendant prior to sending notice to payment vendors and advertising providers for service suspension;
  • The definition for “Sites dedicated to theft of U.S. Property” has been revised in a few ways:
    • It now only applies to foreign sites;
    • the “engages in, enables, or facilitates” language has been removed, and the following definition applies: “… the site is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator primarily for use in, offering goods or services in violation of…” copyright infringement for commercial purposes or for private financial gain, or trademark infringement;
    • the problematic monitoring language (“is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S. Directed site to carry out acts” that constitute copyright infringement) has been replaced with “the operator of the site operates the site with the object of promoting, or has promoted its use to carry out acts that constitute  a violation of section 501 or 1201 of Title 17, United States Code, as shown by clear expression or other affirmative steps taken to foster such violation.”
  • Section 104 provides that in cases where the alleged violations only occur on a portion of a website, payment vendors and advertising providers are only required to blacklist that portion.
  • Section 105 has expanded the scope of its limitation of liability in a two ways: (1) the types of entities protected by the limitation of liability has increased to include credit unions and banking institutions; and (2) the limitation on liability, which was once limited to protecting the entities’ preemptive removal of sites posing a threat to public health, has increased to include the blacklisting of “foreign infringing sites” and “Internet sites dedicated to theft of U.S. Property”

The changes in the Manager’s Amendment seem to be a step in the right direction; however, a number of risks still exist and the vague, inadequately defined language used in the amendment creates a multitude of interpretations and loopholes. Taken one by one, the changes seem problematic for the following reasons:

  • Although “any portion thereof” has been removed, there is nothing to say that a website or site couldn’t be limited to a single web address—for instance, the web address for page two of a forum, or in the example referred to in my previous post, a page dedicated to the sale of a single product. The obligation restrictions provided for in Section 104 seem to support this presumption.
  • While section 104 would arguably permit payment vendors and advertising providers to limit enforcement to that single page, the option may not always be technically reasonable depending on how the payment system is structured. Furthermore, this is simply an option for payment vendors and advertising providers—they may still decide to blacklist the entire website.
  • The increased scope of Section 105 is one of the more deceptive aspects of the amendment, and potentially creates a back door approach to the revisions made to section 103. As Logan Margulies, attorney for Riot Games, pointed out in his IAmA on Reddit, the immunity offered, which is based on proactive blacklisting of allegedly infringing sites, presents a Hobson’s choice to payment vendors, advertising providers, search engines, domain name registries and domain name registrars: if a private party notifies those entities of an alleged infringement on a site and threatens to sue under SOPA, the entity has the option of either a) blacklisting the site and guaranteeing immunity based on a “good faith, credible” belief that the content is infringing (this is approximately the same standard a plaintiff needs to send a take down notice under the DMCA– in other words and based on historical reference, not much); or b) fight the good fight alongside the website owner and potentially lose that liability. As Mr. Margulies points out, that isn’t much of a choice for any business.
  • Although the notification procedure is removed and private parties can no longer submit baseless notifications to payment vendors and advertising providers, the Act now gives plaintiffs immediate access to the courts—once again bypassing the exhaustion of remedies under the DMCA Safe Harbors and other legal channels. And while this change may prohibit individuals with shallow pockets from throwing a website onto the blacklist, it certainly doesn’t prohibit deep pockets that would use those court orders to defeat competitors. As stated before, take down notifications by businesses to drive out competitors constituted more than 50% of the take down notices received by Google. It is very likely that this amendment will be treated in the same manner by companies with the financial backing to drive out foreign digital distributors from the U.S. market, even if (and possibly because) they offer customers better service;
  • While the definition of “Site dedicated to theft of U.S. property” has changed significantly, problems still exist. When we’re talking about user generated content or pages dedicated to content uploaded by a user when that content is potentially infringing, that page or “site” is arguably operated for the purpose of that infringement. However, although the website owner is not a direct infringer, the website owner would still ostensibly be on the hook for that infringement even though they are not the direct infringer, and would still be subject to injunctive relief by court order;
  • The addition of legally vague standards like those provided for in 103(a)(I)(C)(ii) of the Manager’s Amendment (“as shown by clear expression or other affirmative steps taken to foster such violation,”) may not actually make any difference as far as removing the obligation to monitor created in the original draft. A plaintiff could argue that an “affirmative step” includes asserting a policy of not monitoring or moderating content except as necessary to comply with DMCA safe harbors or their own country’s laws. Other “affirmative steps” may include permitting a forum to exist, or if we look at the example provided in my earlier article, having an infrastructure that permits users to create their own “sites”.

While the original hypothetical mentioned in my original article may change in light of these revisions, the Act at its core threatens legitimate digital distribution channels with both criminal and civil penalties. The threat of an injunction and the removal of financial support by private parties is still a prominent part of the Act even if the easily-exploited notification procedures are removed. Under this legislation any large business can easily petition for court orders for the sole purpose of driving out foreign competitors, thus providing customers and content creators alike with fewer options for digital distribution. And the revisions to section 105 arguably makes the court order approach unnecessary– entities granted a promise of immunity have a greater stake in protecting that immunity, legally and financially speaking, than protecting foreign sites that may only offer incremental income.

Living in a global market facilitates competition and growth. Digital distribution channels are the living example of that growth and are vital for independent game developers. The U.S. marketplace does not exist in a vacuum, and it makes little difference where a site’s owner is located. U.S. consumers still have a right to enjoy those distribution channels without the threat of those channels being blacklisted to the sole benefit of U.S. competitors.

This Act doesn’t just threaten digital distribution. It threatens every facet of the Internet and particularly online communities. At this time the markup of the Act has been delayed– other changes may be implemented that either reduce the risks presented or reintroduce earlier regulations and procedures. However, there is nothing to suggest that the core drive behind the legislation will change in any way.

The Pirate Bay Ruling

April 17, 2009 Current Affairs No comments

    A Swedish court handed down The Pirate Bay ruling today, convicting four administrators of The Pirate Bay website (namely Fredrik Neij, Gottfrid Svartholm Warg and Peter Sunde). The reason for the judgment is probably in no small part due to the ideology espoused by The Pirate Bay operators and the notoriety the site enjoys. The Pirate Bay website provides both a search engine for torrent files and runs BitTorrent trackers for the files listed. The conviction included somewhere in the vicinity of $3.5 million in fees, to be awarded to various studios and record companies, and a one year prison sentence. Currently the site is still up and the men are still walking free pending further proceedings. It may be years before a final determination is made on appeal. The ruling raises a whole mess of legal issues, not the least of which is the effect this will have on BitTorrent technology and the repercussions of linking to infringing material.

    BitTorrent

    BitTorrent is a file sharing protocol that enables rapid downloads without putting a great burden on any one particular host. It starts with the creation of a torrent file that contains metadata about the torrent tracker (the only central point in the process and the server that connects peers and coordinates distribution of data) and information about the file a client wants to access. Note that the torrent file doesn't contain copyrighted material—it only contains parameters that can identify pieces of data from that file on the tracker's network. To access the file a user must download the torrent and connect to the specified tracker that then designates how the bits of data are downloaded from various peers on the network. Once a piece of data is taken from the seed that piece of data can be shared from peer to peer and each piece can be downloaded from a variety of peers.

    The advantage of this file-sharing technique is that it puts less strain on the content provider and it reduces strain on individual peers—instead of downloading one large file from one host or peer, small data requests are sent out on the network and are downloaded from multiple sources. The protocol does more than bypass the original content provider/copyright owner (although it can and has been used for that purpose). It reduces the cost to content providers and, in the case of secure trackers like the one used by the World of Warcraft downloader, it can provide a faster downloading mechanism to rapidly distribute patches and updates.

    This raises a major point. The BitTorrent protocol wasn't on trial here.

BitTorrent, Inc. (the developer of the protocol) is a San Francisco, CA company that has licenses from various media providers to share hundreds of shows, songs and films through its website and search engine. Trackers can be private and secure—their primary function is to list and sort the IP addresses of peers and coordinate what downloads from where, and they're necessary for the BitTorrent protocol to function.

    The Pirate Bay

    The Pirate Bay was created in 2003 by the Swedish anti Copyright group Piratbyrån and later separated as its own organization. It utilizes OpenTracker software to coordinate communication between peers. While anyone can download torrents from the site, only registered users can upload torrents and post comments and messages. The Pirate Bay is a bit antagonistic when it comes to legal threats—in one memorable reply to a take-down notice from DreamWorks SKG, "It is the opinion of us and our lawyers that you are ……. morons, and that you should please go sodomize yourself with retractable batons."

    The Pirate Bay strongly held to its belief that it was immune from suit because, up until 2005, Sweden had some fairly lenient copyright laws. Previously it was legal in Sweden to copy and distribute unauthorized copyrighted works through the Internet. However, the EC Directive on aspects of copyright and related rights in the information society forced Sweden to adopt laws criminalizing this conduct. This put Sweden more in line with EU and US law. However, Swedish law doesn't really distinguish between criminal and civil litigation, and the Swedish Copyright Legislation lacks the safe harbors for ISPs and website operators provided for in 17 U.S.C. § 512. Because The Pirate Bay made it a point to be as visible as possible they were the first to fall under the proverbial Axe.

    The Charges

     Investigation into The Pirate Bay began in 2006. The prosecution of The Pirate Bay began with two charges under Chapter 7 of the Swedish Copyright Legislation. The two charges included "assisting copyright infringement," and "assisting making available copyrighted material." The first charge for assisting copyright infringement was later dropped and The Pirate Bay administrators were only charged with assisting making available copyrighted materials.

    The Trial

    The Trial took place in February 2009 and lasted for nine days. During the trial, if the Internet is to be believed, The Pirate Bay received ample support and held fast to its defense: no copyrighted material at any time existed on The Pirate Bay's servers and neither the site nor its operators committed copyright infringement. They also contended that search engines such as Google can perform the same function as The Pirate Bay. 

    The Outcome

    None the less, as of today the Court found that The Pirate Bay did assist in making available copyrighted material by  creating a "sophisticated" search function and acting as a torrent tracker for what was predominantly unauthorized copyrighted material. From an outside perspective this seems more a matter of politicking than actual justice–Swedish prosecutors and Courts were under pressure to enforce new copyright laws. The Pirate Bay is a highly visible and vocal website with a massive community that contained links to torrents that lead to a lot of unauthorized copyrighted works. They made a good target.

      It's a sticky, quicksand kind of issue because the technology can be extraordinarily decentralized and a website could do nothing more than act as an internet search engine (i.e. Google) and provide similar functionality as The Pirate Bay. In that argument The Pirate Bay is certainly correct. Many torrents operate on a "trackerless" system that makes each peer a tracker, so all you need to do is find a torrent on Google, download it and open it in a BitTorrent client. No one is going to shut down BitTorrent or try to prohibit BitTorrent protocol because the clients are functional beyond circumventing content owners and many content providers use BitTorrent protocol. Certainly no one's going to shut down Google.

    The frightening but somewhat expected outcome of this ruling is the suggestion that merely providing a hyperlink to a file or site that will probably lead to unauthorized copyrighted works is contributory infringement if you express a particular ideology. One could argue that The Pirate Bay was prosecuted because of its political affiliation.

    This could raise a freedom of speech issue.

    The Pirate Bay prided itself in its piracy. It promotes a particular ideology in copyright reform: that the current state of copyright law is a grossly exaggerated shield to protect major content providers as opposed to promoting individual contribution to the intellectual marketplace. There is a very active and very real political party in Sweden that expresses this ideology. The Pirate Bay operated under the protection of Sweden's liberal copyright laws for over two years before what they viewed as their right to freely distribute content on the Internet was removed.

    The outcome for now looks dim and strange, but it is by no means certain.

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