SOPA – Law Street

Remembering Aaron Swartz and His Battle With PACER

Jimmy Hoover — Mon, 13 Jan 2014 18:38:02 +0000

In September 2008, Aaron Swartz commissioned a friend to walk into a federal law library in Sacramento with a thumb drive. The building was one of 17 in the country with unlimited access to the Public Access to Court Electronic Records (PACER) database, a service that normally chargers users a fee for each page of downloaded federal court records. With the intention of delivering free public records to the public, the friend installed a Perl script written in part by Schwartz on one of the computers and walked out.

Over the course of two weeks, the script pilfered a document from the system every 3 seconds and uploaded it to an Amazon cloud server. Swartz then donated the documents to Carl Malamud’s non-profit website, public.resource.org, which aimed to liberate all public records from internet paywalls. By the time court administrators saw a $1.5 million spike in access fees on Sept. 29th, Schwartz had already made off with 2.7 million documents. (Source: Timothy Lee, Ars Tecnica)

Exactly one year ago, Aaron Swartz took his life in his Brooklyn apartment. Since then much has been said whether the notoriously harried FBI suspect was indeed a martyr for the cause of internet freedom, or another bright young man plagued by a dark cloud. But what’s not up for debate was his real-world impact on the culture of the internet: his programming contributions to the hugely popular website, Reddit (which, in the interest of full disclosure, I admit to frequenting,) and his showdowns as an activist against JSTOR, which opened up their taxpayer-funded research to the public as a result of his hounding. Swartz was posthumously awarded the Electronic Frontier Foundation’s Pioneer Award and will be honored in an anti-surveillance protest come February called The Day We Fight Back.

However, while Swartz will be lauded for his vigorous protesting of SOPA, and PIPA—censorship legislation proposed by members of congress— his work in the interest of freeing up court records will , as it has in the past, go largely unnoticed. So it is here that I draw attention to RECAP, a Chrome and Firefox extension that has been likened to the Napster of PACER, whereby purchased federal court documents can be uploaded and shared with anyone who chooses to view them. This would not have been possible without Swartz. Or to take another example, the aforementioned public.resource.org that has an enormous collection of free public court records thanks to the 2008 document heist. Notwithstanding these advents, costs of electronic records in the public domain are still shrouded behind unnecessary costs.

Taken from a page of public.resource.org titled “The PACER Problem” is a quote from Swartz’s contemporary Carl Malamud:

We are a nation of laws, but the laws are not publicly available. This is a fundamental issue for democracy, for if we are a nation of laws, we must be able to consult the cases and codes of our government.

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Jimmy Hoover (@jimmyhoover3)

Featured image courtesy of [Daniel J. Sieradski via Wikipedia]

Jimmy Hoover

Jimmy Hoover is a graduate of the University of Maryland College Park and formerly an intern at Law Street Media. Contact Jimmy at staff@LawStreetMedia.com.

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End of the Internet as We Know It: Trans-Pacific Partnership Agreement

Gena Thomas — Mon, 09 Dec 2013 17:41:44 +0000

On November 13, WikiLeaks, a nonprofit media organization that prides itself on divulging imperative information to the public, leaked a draft of the Trans-Pacific Partnership (TPP) agreement. The agreement was being secretly negotiated among our government’s policymakers in order to avoid public uproar and backlash that may result in the watering down of some of the agreement’s regulations. If there is a need to smuggle proposed legislation into enactment in a democratic society for fear of being met with opposition, then maybe the law isn’t representative of the majority’s voice.

This law is far worse than SOPA and PIPA combined. It’s a “free trade” pact between 12 countries, including the U.S., Canada, and Mexico. What it really is is an agenda effectuated by corporate powerhouses that want greater intellectual property protection at the cost of freedom of expression and creation.

Three key provisions of the TPP that will affect you and should elicit your interest:

Our internet service providers will become the copyright coalition. The Digital Millenium Copyright Act’s (DMCA) takedown notice procedures provide Internet Service Providers (ISPs) with safeguards against suit for copyright infringement committed by its users. If a user is accused of infringement, the ISP, upon receiving the takedown notice, must immediately delete the infringing content pending a determination of infringement in order to avoid liability for the posted material. If you think this is unfair, the TPP takes it a step further. The TPP grants legal incentives to these internet middlemen in exchange for their participation as copyright police (essentially). Why does this matter? Well these provisions could potentially result in the filtering of user content for possibly infringing material. Websites that may contain infringing material, including social media hangouts, have a chance of being blocked by these ISPs so that the provider can circumvent liability for infringing material transferred through the internet. And think about it from an economic standpoint. How much would it cost for ISPs to comb through every bit of user-generated content to determine if there are copyright concerns? It’s definitely a lot more than simply running a prudent internet service that limits access to certain sites and web platforms.

Patent powers will be used for evil. The TPP makes patents more easily accessible for the pharmaceutical industry by including an entire section in the agreement devoted to opening the pathways to patent protection for specifically this industry. Additionally, patent applicants in this industry will be able to limit the availability of the scientific info that was utilized to create the medicine, which operates to give the pharm moguls a huge amount of leverage against other creators. The price of medicine will undoubtedly increase, and I think that was the whole purpose of this particular law to begin with.

Protection will infringe on constitutional rights. Our constitution aims to encourage invention and the arts by limiting the time period for which a holder of intellectual property can assert his or her rights. This law proposes to extend the years of copyright protection by 20 years and thus further minimize the amount of information available in the public domain from which new works can be created.

And that’s only just the tip! For the full leaked version of the Trans-Pacific Partnership agreement, click here. I strongly advise you to look it over or read a few summaries on it when you get the chance. The availability of knowledge and legal space for innovation will be dramatically decreased by the TPP. And should our democratic values be neglected in the interest of corporate wealth? NO! So do something.

Please take a few seconds to sign this petition to stop the TPP here.

Gena.

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Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts.

Featured image courtesy of [hdzimmermann via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

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SOPA: The Argument is Over, but the Dust Hasn’t Settled

John Gomis — Wed, 09 Oct 2013 03:25:26 +0000

Image courtesy of [Yogesh Mhatre via Flickr]

The Stop Online Piracy Act (SOPA) was a bill proposed in Congress in 2011 that immediately made headlines because opponents argued that it was too restrictive and had the potential to hamper free speech. It did not end up passing, but the ideas and motivations behind it still remain up for debate. Read on to learn about SOPA, the legislative battles surrounding it, and where we stand now.

What was SOPA?

The provisions of the bill primarily included increased federal enforcement of copyright laws and increased government action against entities involved in copyright infringement. These provisions include allowing both the U.S. Department of Justice and private copyright holders to obtain injunctions against copyright infringement by foreign-based entities. The bill would have allowed the Justice Department to bar internet advertising networks and payment network providers from servicing infringing websites e.g. torrent websites, sites that allow streaming of copyrighted movies or TV shows, etc. SOPA also would have prevented search engines from providing links to those websites.

SOPA aimed to increase the criminal penalties infringers face under the law. For example, the penalties for economic espionage would have been a maximum of 15-20 years imprisonment and fines up to $5 million. The bill would have increased the realm of copyright crimes to include those perpetrated by “electronic means.” Criminal penalties would have increased for IP infringement of government information or infringement that results in harm to government personnel or interests.

SOPA also would have had major implications for IP civil jurisprudence. Private entities are given rights against infringers as well. If a private entity is damaged by infringement and wishes to exercise SOPA rights they could have sent written notification to payment agents and advertising networks connected with the alleged offending site who then have to inform them and cease service unless the alleged infringer can respond with a counter-notification, indicating that they are not infringing. The copyright holder would have been able to bring an action for injunctive relief against the infringing site’s owners if either a counter-notification was provided or payment networks continue serving the alleged infringer without a counter-notification. Applying SOPA rights to foreign sites would have required them to consent to U.S. jurisdiction to determine if they are dedicated to infringement.

What was the argument for SOPA?

Proponents of the bill believed that SOPA could have created a lot of benefits for the public. It created major difficulties for perpetrators of IP crime because it would have given private companies the means and authorization to enforce and protect their own intellectual property rights. This allowed IP crimes to be remedied more quickly and at a far lower cost to the public because it could be done without the time constraints and expense of adjudication. This would improve the economy by decreasing government spending on investigating and prosecuting IP crimes. The fear of facing civil litigation under SOPA and the strengthened criminal penalties would have created a strong disincentive for many forms of infringement. Furthermore, by hamstringing IP infringement SOPA would make the U.S. more attractive to authors and innovators and reinvigorate the economy with increased job creation.

What was the argument against SOPA?

Opponents highlighted SOPA’s drawbacks. Under the law, even when a valid counter-notification would have been sent, third-party servicers were not required to resume serving accused websites. SOPA also insulated the third parties from all lawsuits except those initiated by the copyright holder. Therefore, the law allowed and perhaps even incentivized companies to limit other companies’ legal and commercial rights without judicial oversight, leaving SOPA vulnerable to the objection that it violates individuals’ constitutional due process. Non-infringing companies may be damaged by having valuable business relationships taken away from them without a meaningful opportunity to be heard and without legal recourse. This is because even if a company is found to be non-infringing there is no requirement that the discontinued services be reinstated. Finally, SOPA would not have accounted for the proportionality of the alleged infringement relative to the alleged infringer’s website. For example, under SOPA if one person uploaded an allegedly infringing video on Facebook and the owner exercised his SOPA rights he could potentially bring SOPA action against Facebook in its entirety.

What happened with SOPA?

There was a lot of backlash against SOPA from high-profile and much-used websites. On a few different days websites blacked themselves out to protest SOPA. The blackouts not only called attention to the issue, but also served as a sort of warning to consumers that if they did not get involved in stopping SOPA, some of their favorite websites would be threatened. Participants included Wikipedia, WordPress, and BoingBoing. Eventually, SOPA ended up failing. There were attempts to revive it about a year later, but nothing really came of those.

SOPA is the perfect example of the disconnect between technology and the people making our laws. On paper the idea sounded good, but in practice there were significant problems with the proposed law. While the debate over copyright and technology is far from over, SOPA almost certainly is.