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August 24, 2013
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Edit 3/14/2014



I've finished my final writeup!

SOPA 2014: Voluntary Agreements, TPP, and StaydownEDIT 3/22: Added some links, some additional notes, and some credit. (Also added some of the same on 3/17)
A few days ago, I started seeing journals once again ranting about how SOPA is going to take away our fandom, or even our original content, in my feed here on deviantART. I did a search for reputable sources talking about it, and found just enough to be worth discussing, but not enough to justify the panic that's happened. I vowed I would do a journal about it come the weekend.
Since then, it's blown up. I've had numerous new faves on my old write-up of SOPA 201, despite it having "2013" in the title. I wish I could be happy as well as flattered, but the piece of potential legislation I wrote about then isn't the one people are talking about now. People have been calling for me to explain the "New" SOPA, but research to cite has been scant and so has my time. I have many more obligations now than I did then, and I wrote the last article at a much less busy time


And my friend did a petition that covers my points:

wh.gov/lVUUX

Edit 3/13/2014



Are you here about SOPA 2014? I'm still working on my write-up of the latest SOPA Scare. Most of the research is done, and I am in editing/petition hunting now. If you'd like to see what I have, and maybe even help, the link is here: 

sta.sh/01z7ekc8lpoq

Please do not use the article you're looking at now, "The Real Story on SOPA 2013/Section 201," to figure out the current situation. It has NOTHING to do with the two things that have people crying that SOPA is back this time. 

EDIT 3/12/2014: This article is OUTDATED and does not apply to the latest "SOPA scare." I'm hoping to write up a more detailed article on the new SOPA, but last I checked research was light, and these things take time.

The new SOPA is more serious than this one, but not as serious as most people on deviantART are saying. It's my understanding that the new SOPA won't change the already dubious legal status of fanwork... it will only make it harder for hosts, search engines, and directories to resist financial pressure from copyright holders to disallow these things.

This is not as bad as the original SOPA, so stop scare mongering. 

I will post more when I am able.

***

Edit 6:50 P.M. EDT 8/24/2013: Made a minor edit for clarification when discussing fair use, and fixed some minor mistakes. Thanks to cneilson for the tip!

***

Most of you are likely aware of the memetic circulation of a petition here on dA. The petition rambles about SOPA and PIPA being "back," and people's write-ups of it in their journals universally cite broad-reaching consequences... without actually naming the particular legislation in question. I think you can see the problem here. 

I don't know about you, but no matter how you feel about trusting the government... you really should distrust people who try to stir up your emotions without giving you facts a bit more. 

I've spent far more of the last day than I wanted to trying to look up details on a revival of SOPA. I have been severely hindered by in this by the fact that the bills talk about "SOPA" and "PIPA," bills that have been killed and will never be introduced under their former names again for PR reasons. 

So far, I've only found one thing that actually fits. If you have found an actual proposed piece of legislation that fits aside from "section 201," please comment or note me. 

There was a section of SOPA, section 201, that changed the way the law handles "public performance." I am pretty sure it is not against US law to reproduce the actual text of proposed laws, so I'm actually going to copy and paste directly from the Library of Congress' website and talk about what I found there.

I will be formatting parts of the bill for emphasis.

If you do not want to read my analysis of the law, please use ctrl + f or command + f to search for "Conclusions of Analysis" where I will explain how my findings should effect the petition.


Line by Line Analysis of SOPA Section 201

    (a) Title 17 Amendments- Section 506(a) of title 17, United States Code, is amended to read as follows:
OK, so to understand this, we have to understand U.S. Code Title 17, particularly amendment 506a. A quick search reveals this is pertaining to copyright. Duh. Finding the actual text of it was fairly annoying by government document standards, but I did find it: www.copyright.gov/title17/92ch… . For easier reading, I'm going to try to avoid quoting from it in block-quotes, but I'm going to italicize what 201 changes.
    `(a) Criminal Infringement-

      `(1) IN GENERAL- Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed--

      `(A) for purposes of commercial advantage or private financial gain;

      `(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, or by the public performance by means of digital transmission, during any 180-day period, of 1 or more copyrighted works, when the total retail value of the copies or phonorecords, or of the public performances, is more than $1,000; or

      `(C) by the distribution or public performance of a work being prepared for commercial dissemination, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial dissemination.
The purpose of this change is to specifically make STREAMING a work as illegal as allowing it to be DOWNLOADED. I am not clear on whether the law at this point punishes the person viewing the stream as well as the person offering it, but it's my understanding that until this point "public performance" of copyrighted work was governed by different, weaker laws than outright theft.  That's why you can generally get away with singing happy birthday in a public place, but the wait staff at a restaurant cannot. 

Interesting note: this would make Let's Plays on the same level as allowing a game to be downloaded for play.

Onwards.
    `(2) EVIDENCE- For purposes of this subsection, evidence of reproduction, distribution, or public performance of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.
The purpose of THIS passage in both the original code and SOPA Section 201 is to protect people who literally had no idea it was copyrighted, and had no way to know. Given that the previous passage makes it clear that you're still accountable for what you should have known, this is kind of confusion. My bet is that this exists to protect people who have a disputed claim to the copyright, or who made an honest mistake, like TV shows that don't have the rights to the music on the DVD release. Again, the only change is the "Public performance" provision.

      `(3) DEFINITION- In this subsection, the term `work being prepared for commercial dissemination' means--

      `(A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution or public performance--

      `(i)(I) the copyright owner has a reasonable expectation of commercial distribution; and

      `(II) the copies or phonorecords of the work have not been commercially distributed in the United States by or with the authorization of the copyright owner; or

      `(ii)(I) the copyright owner does not intend to offer copies of the work for commercial distribution but has a reasonable expectation of other forms of commercial dissemination of the work; and

      `(II) the work has not been commercially disseminated to the public in the United States by or with the authorization of the copyright owner;
That's a doozy. Basically, the original passage is specifically designed to nip piracy of unreleased movies in the bud. This broadens the scope to include works that are released in other places first, or not released here at all. It's designed to close a loophole in the existing law, but it has a potential chilling effect on the distribution of things that are not intended to be localized, like anime and manga that aren't in negotiations to be adapted. I think you could still make an argument for work that will NEVER be released here being ok under this, but I AM NOT A LAWYER. I'm a history teacher.
      (B) a motion picture, if, at the time of unauthorized distribution or public performance, the motion picture--

      `(i)(I) has been made available for viewing in a motion picture exhibition facility; and

      `(II) has not been made available in copies for sale to the general public in the United States by or with the authorization of the copyright owner in a format intended to permit viewing outside a motion picture exhibition facility; or

      `(ii) had not been commercially disseminated to the public in the United States by or with the authorization of the copyright owner more than 24 hours before the unauthorized distribution or public performance.'.
 Basically, this helps them prosecute people who stream or upload these videos right before the release. I think. Again, IANAL.

Title 17 is basically unchanged from there on out. I don't know about you, but I don't really think this law changes all that much. It does make it harder to be a fansubber, though. This passage certainly wouldn't have any effect on dA.

The next part of the law amends Title 18. I had a harder time finding this; here's a link to the law as posted at Cornell University: www.law.cornell.edu/uscode/tex… Again, I'll be using italics and bold as needed to show where text differs, if the text of the proposed legislation doesn't. 
    (1) in subsection (b)(1), by striking `during any 180-day period' and all that follows and insert `of at least 10 copies or phonorecords, or of at least 10 public performances by means of digital transmission, of 1 or more copyrighted works, during any 180-day period, which have a total retail value of more than $2,500;';
Basically, this creates a lifetime cap of ten infringements before you become a felon, instead of letting it reset after 180 days. I don't really find this part offensive.

      (2) in subsection (c)--

      (A) in paragraph (1), by striking `of 10 or more copies or phonorecords' and all that follows and inserting `including by electronic means, of at least 10 copies or phonorecords, or of at least 10 public performances by means of digital transmission, of 1 or more copyrighted works, during any 180-day period, which have a total retail value of more than $2,500;'; and

      (B) in paragraph (3), by striking `if the offense' and all that follows and inserting `in any other case;';
These changes extend the three-year sentence and maximum fine to offenses by streaming, but also increase the amount of people who are eligible for the minimum one year sentence and fines. So yes, this does make streaming copyrighted material, including lets plays and fansubbed anime, punishable by jailtime measured in years. 

    (3) in subsection (d)(4), by striking `under paragraph (2)' and inserting `committed for purposes of commercial advantage or private financial gain under subsection (a)';
Basically this passage reserves the harshest penalties for people who are profiting from copyright infringement and protects people who are attempting to use fair use for the public good from the harshest penalties (it does not absolve them of criminal or civil responsibility in total, though). Still, it does increase the span of people who can receive this penalty to people who are doing this for any kind of financial reason. 
      (4) in subsection (f)--

      (A) by amending paragraph (2) to read as follows:

      `(2) the terms `reproduction', `distribution', and `public performance' refer to the exclusive rights of a copyright owner under paragraphs (1), (3), (4), and (6), respectively, of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 122, of title 17; and';

      (B) in paragraph (3), by striking `; and' and inserting a period; and

      (C) by striking paragraph (4); and
So this is basically saying only the copyright owner is allowed to stream something. This would effectively outlaw Youtube cover videos more thoroughly than they are now. It also mixes up some definitions.

      (5) by adding at the end the following new subsection:

    `(g) Evidence of Total Retail Value- For purposes of this section and section 506(a) of title 17, total retail value may be shown by evidence of--

      `(1) the total retail price that persons receiving the reproductions, distributions, or public performances constituting the offense would have paid to receive such reproductions, distributions, or public performances lawfully;

      `(2) the total economic value of the reproductions, distributions, or public performances to the infringer or to the copyright owner, as shown by evidence of fee, advertising, or other revenue that was received by the person who commits the offense, or that the copyright owner would have been entitled to receive had such reproductions, distributions, or public performances been offered lawfully; or

      `(3) the total fair market value of licenses to offer the type of reproductions, distributions, or public performances constituting the offense.'.
This basically stipulates that if no one would pay for it and the copyright owner or thief weren't charging for or getting ad revenue for it, you can't really go after them. That doesn't really change much, though.
    (c) Rule of Construction- Any person acting with a good faith reasonable basis in law to believe that the person's conduct is lawful shall not be considered to have acted willfully for purposes of the amendments made by this section. Such person includes, but is not limited to, a person engaged in conduct forming the basis of a bona fide commercial dispute over the scope of existence of a contract or license governing such conduct where such person has a reasonable basis in law to believe that such conduct is noninfringing. Nothing in this subsection shall affect the application or interpretation of the willfulness requirement in any other provision of civil or criminal law.
So basically this is saying "Look, you can be slapped with all sorts of civil lawsuits and minor criminal charges for redistributing something you don't have the rights to... but if it looks like you genuinely had a good reason to think it might be ok, you won't go to prison for six years over it." 

Conclusions of Analysis


Right now, it's a misdemeanor to stream copyrighted material, or perform it in public. It's a minor criminal offense. This law seems to make that a felony, and to sharply increase the penalties. Things that would be jailable offenses under this revised section would include:
  • Posting a Let's Play on youtube
  • Posting a fansub of an anime that is not intended for dubbing
  • Posting an AMV
  • Posting a lyrics video
  • Posting your own cover of a copyrighted song
  • Singing "Happy Birthday" in public
I'm also not sure about this, but I'm pretty sure that watching any of the above also counts. This basically eliminates the distinction between downloading copyrighted material and streaming it, making the two acts equivalent. Downloading is already illegal.

While this would have almost no impact on Deviantart, people's OCs, etc, as people are saying, it would cripple Youtube. Not only would it cut out some of the best reasons to go on youtubue (like Let's Plays that comment on and analyze a game or fan covers of songs with different instrumentation or vocal ranges), it would make it hard to go on youtube and watch things. If you have any indication you're watching something the uploader didn't create, you might be in trouble, too.

Now, I'm against many cases of copyright infringement. I don't believe in downloading movies you could go pay to see... but you know what? This does a lot more than that. This creates situations where you could go to jail from singing "Happy Birthday" in public too often. It creates situations where you could go to jail for making AMVs or subbing anime that will never be released here (although the latter would be very difficult to prosecute).This would undercut safety of youtube for viewing by the public and, if I understand the law correctly, damage the exposure of original, non-infringing content by introducing additional risks of inadvertent infringement by potential viewers.

So, once again, this would hurt people who are actually independently making their own things in order to help big industries protect their profits. 

If someone can show me where in the law it says you can't go to jail for downloading copyrighted stuff without uploading it, too, I'll go redacting, but I'm pretty sure you can right now. I don't know because I don't download movies, or anything I don't have a legal copy of, anyway. 

What You Should Do


That petition that everyone is passing around is vague and unlikely to heard. You can't even tell what legislation it's about.

If you want to change this, you need to specifically name the legislation and passages that you're opposed to, and you need to explain why in the petition. You also need to do enough fact checking to make sure the legislation you're talking about will actually do what you're afraid of

So if someone can give me the particular law that lets the RIAA and MPAA prosecute downloaders as well as uploaders, I may be able to craft some text for you Monday or Tuesday.

Meanwhile, we need to make sure that SOPA 201 is what people are actually talking about. Do some basic internet searching for SOPA, PIPA, and Section 201, and check the news online before posting, ok?
THIS WRITEUP IS NOW OUTDATED. I hope to write up "SOPA 2014" soon.

My attempt to break down the latest SOPA/PIPA scare and recommend a course of action more likely to be hearded than a poorly-written, vague petition on the internet. 

Long story short, the threat of a reintroduction of a small portion of SOPA has been grossly exaggerated, but it does still have potentially chilling effects on things it doesn't actually outlaw. The petition that's currently circulating is useless in terms of actually stopping it. I don't proclaim to totally understand copyright law, but I know enough to tell you a better way to try to stop this.
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:iconkimi-no-tame-ni:
Kimi-No-Tame-Ni Featured By Owner Mar 16, 2014  Hobbyist Digital Artist
Just a question if you have an old account at the White government website but you don't wanna use it anymore how do you deactivate it?
Reply
:icondecepticonflamewar:
DecepticonFlamewar Featured By Owner Mar 16, 2014  Hobbyist General Artist
I'm sorry, but I have no idea. I had so much trouble with my account there that my friend had to make the petition! 
Reply
:iconkimi-no-tame-ni:
Kimi-No-Tame-Ni Featured By Owner Mar 16, 2014  Hobbyist Digital Artist
Well when I don't want my account anymore I'll just let it rot there forever. XD
Reply
:iconsharraxthexcubone:
sharraXtheXcubone Featured By Owner Mar 12, 2014  Hobbyist Digital Artist
I just read your journal, your link and a few other things but I'm confused.  Some claim its a hoax but some say its real.  Are they really going to ban fanart? 
Reply
:icondecepticonflamewar:
DecepticonFlamewar Featured By Owner Mar 12, 2014  Hobbyist General Artist
If you look at the title of my post, you may notice that it says SOPA 2013. This post is outdated.

In the last few days, news has broke of the major content holders taking a new approach to copyright, by trying  to manipulate the legal system to allow them to force individual hosts, servers, and directories to sign agreements forcing SOPA-esque rules without actually legally forcing those requirements on everyone. I'm not sure I understand it yet, and I plan on doing some research and doing another in-depth writeup this weekend or sometime next week. 

Whatever's going on wouldn't be as bad as the original SOPA, exactly, but if it happens, it would be worse than the legislation I discussed in this journal. The fact is, though, that fanart is already of dubious legality, and this wouldn't do much except make it easier for companies to stop it from being disseminated and to prosecute something that, in many cases, is already a misdemeanor crime. 

This is something the internet should be talking about. What dA is doing is not "talking." It's running around shouting "The sky is falling!" 

And a White House petition won't do JACK unless it's specific about what people are opposing. Not that they're binding anyway. 

So I can't really answer your question, but I hope that's close enough for now. 
Reply
:iconsharraxthexcubone:
sharraXtheXcubone Featured By Owner Mar 12, 2014  Hobbyist Digital Artist
Sort of...to be honest not being able to post my fanart wouldn't really bother me since few people even notice it.  Its things like getting in trouble by emailing my fanart to friends or through pm that would bother me.  None of my friends actually live anywhere near me so i wouldn't be able to show them in person. 
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:icondecepticonflamewar:
DecepticonFlamewar Featured By Owner Mar 12, 2014  Hobbyist General Artist
The real problem with this is that right now, there's a system in place that allows copyright holders to have works that violate their copyright quickly removed, and also allows end users to post work quickly without heavy moderation. Anything that circumvents the DMCA, the law that allows this, would result in a lot of sites just shutting down user submissions, heavily moderating them, and completely changing how they do things. If this happens, fandom would end up going underground and private, and there's a good chance the companies would eventually go after e-mail services, which would become the main way for most of us to share what we've done. 

The worst thing is that many companies deliberately turn a blind eye to fanfiction and fanart, viewing it as publicity or an expression of fan love. A handful of companies enforcing copyrights on their works to fanfiction and fanart would result in a crackdown on unrelated work. Actual copyright law prevents most companies from explicitly supporting fanfiction and fanart, too, so they'd be in a bind. 
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:iconsugarrusheb:
SugarRushEB Featured By Owner Mar 10, 2014  Student Traditional Artist
*Facepalms* I read this after I posted that petition... I feel like a bit of an idiot now.... 
Reply
:icondecepticonflamewar:
DecepticonFlamewar Featured By Owner Mar 10, 2014  Hobbyist General Artist
This story is actually oudated; as you can see, it's labelled 2013. People are talking about SOPA again because the lobbyists behind it are trying to find extralegal ways to apply the provisions that they want from it to the industry. While this is bad and needs to be addressed and resisted in a respectful and comprehensive way, shouting about how "sopa will make fandom illegal," as most of my friends who have reposted the hoax have done, does not help because it isn't really SOPA anymore. 

Here's the most reputable link I've found on the psuedo-SOPA voluntary agreement campaign:

www.slate.com/blogs/future_ten…

Thanks for taking the time to comment! 
Reply
:iconsugarrusheb:
SugarRushEB Featured By Owner Mar 10, 2014  Student Traditional Artist
Thank you for taking the time to write all of this! (The journal and the comment!) 
This will definitely help a LOT of people!
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