House Version of Rogue Websites Bill Adds DMCA Bypass, Penalties for DNS Workarounds

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The House has just introduced its take on the PROTECT IP Act, and they’re calling it H.R. 3261, the Stop Online Piracy Act. It includes both the "rogue websites" bill and a version of the felony streaming bill. SOPA is significantly worse than its Senate cousin. This isn’t just because it uses more expansive definitions or broader language; it makes fundamental changes to who faces liability for copyright infringement. Here are a few brief highlights:

Easier for Private Parties to Declare You an IP Thief

It’s suddenly a lot easier to be declared “dedicated to the theft of U.S. property.” A website that deliberately acts “to avoid confirming a high probability of the use…of the site” to commit infringements” faces getting shut down by a lawsuit from a rightsholder, or having its credit card and ad funding pulled by a court order. The bill doesn’t specify what a “high probability” is, or what it means to “avoid confirming” that. Content holders like Viacom have continually been trying to shift the requirements of the Digital Millennium Copyright Act to require websites to take a more active role in policing for infringement. This gives them the power to shut down sites like YouTube while disregarding the DMCA. Some might say it’s a codification of copyright inducement, but it’s actually sloppier than that; it basically creates a new violation that isn’t itself copyright infringement, but could be called “lacking sufficient zeal to prevent copyright infringement.” In fact, this might make it much more worthwhile than trying to win a copyright infringement suit—just sue under this new Act.

Vague Orders to ISPs

The Senate bill grants the attorney general the power to request orders that require DNS operators to redirect requests to targeted sites. The House bill goes further, saying that any online service provider who has a DNS server has to generally “take technically feasible and reasonable measures designed to prevent access by its subscribers” to the targeted site. This includes DNS redirecting, but also can include any number of unspecified actions. What they are is completely unknown.

Penalties for Stating the Obvious

SOPA authorizes the attorney general to go after anyone who provides a product or service to get around a court-ordered DNS redirect. The funny thing is, it’s amazingly easy to do just that—in fact, it’s been one of the reasons we’ve been saying that DNS blocking is ineffective. In a weird way, this looks like an attempt to shore up the technical weakness of a DNS-based solution, but doing so by trying to enjoin anyone who shares a list of IP addresses is unworkable enough in itself, let alone the implications for the growing numbers of journalists and ordinary users discussing the bill and its many flaws.

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