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SOPA's not dead yet: the 6 things every game developer needs to know
SOPA's not dead yet: the 6 things every game developer needs to know
January 20, 2012 | By Mona Ibrahim

January 20, 2012 | By Mona Ibrahim

[Attorney and frequent Gamasutra contributor Mona Ibrahim breaks down what internet blackout bills could mean for video game developers.]

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. 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, there is still a possibility that either Act will be become law. 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).

2. 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.

3. 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.

4. 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.

5. 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.

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 the bill should contact their representatives and request that they withdraw support from bills that threaten a free and open Internet.

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Timothee Garnaud
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Thank for this article. In France journalists haven't talked much about SOPA and PIPA, exept yesterday when Megaupload was shutted down and Anonymous reacted. The laws haven't been explained clearly neither. This law is a real problem for the free internet.

Louis Png
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In my country, these topics are hardly addressed as well, but as it stands, both acts thretens the freedom of indie developers and artists severely.

Michael Joseph
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Cory Doctorow

"The coming war on general computation. The copyright war was just the beginning."

1 hour presentation

"All attempts at controlling PCs will converge on rootkits. All attempts at controlling the internet will converge on surveillance and censorship."

worth watching.

Kevin Reilly
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It is frustrating that most of the traditional media coverage of the 2 bills and opposition to same as a simple choice between piracy (which no legitimate business supports) v. freedom from censorship (which is only one issue with the bills). In light of the Megaupload shutdown, no one is asking the relevant question of why one industry thinks it needs the ability to carpet bomb the internet in order to battle piracy? The real answer is not to save jobs, but to preserve control of and profits derived from physical distribution of media content. The internet is an open and content agnostic distribution tool. It doesn't treat any piece of content differently from another regardless of the source. Piano playing cats have the same access to users on Youtube as any music video, movie or tv show. This drives the 6 major studios crazy because they cannot control the actual distribution of content to the same extent as they do in theaters, TV stations and retail. Why else would they fought consumer focused technical innovations such as the VCR, TiVo and day and date streaming to the internet? Because it give consumers a choice as to where and when they access content. This "disrupts" their business model. These bills have one purpose: to preserve the shrinking theater and home video markets which are shrinking.

Kim Simmons
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Good video about SOPA on the other day.

SOPA threatens freedom of speech, but also our rights in court.

Yama Habib
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He should be a bit more careful with his wording of certain things, but for the most part this speech hits the nail on the head. Cheers for sharing!

E Zachary Knight
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Yama, what wording should he be more careful of. I have watched this video and see no problems with how he presents his message.

Bolo Yeung
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This bill has nothing to do with piracy. The arrests and shutting down of Megaupload have proven that the existing laws are more than adequate to deal with this issue. What this bill means to do is give total control of the internet over to corporate interests and the ending of free speech. This bill is the end of the internet as we know it.

Titi Naburu
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"the censorship of perfectly legal content is a possibility"

Well, I had two of my videogames published on Megaupload, so the FBI censored me without SOPA or PIPA. The current laws are totally inadequate. These new laws would just make it even worse.

Kassim Adewale
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Bolo Yeung you are right, but the interested corporations too are not safe, they must tread carefully, it can backfire for them too like Frankenstein monster.

Joshua Criz
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This might be a dumb question, but would eliminating the ability for a DNS lookup to work on a blocked website have any effect if you knew the IP address of the server you were looking for? i.e. if were censored but you knew that their server is at 192.155.49.XXX you would still be able to get there, wouldn't you? I'm not suggesting that the current legislation should not be opposed, I'm more curious about the effectiveness of the punishment.

E Zachary Knight
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You are correct. If you know the IP addres, you can easily bypass DNS blocking. In fact there were a number of tool released when the ICE and the DHS were seizing domain names from sites last year. These tools, mostly in the form of browser plugins, would compare the URL you typed into the address bar to a list of seized domains and then change the request to the IP address.

However, under SOPA such tools would be illegal to create and share.

Kassim Adewale
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Most people don’t know or observe IP address of most sites, central DNS eliminated the need for individual IPs stack-up, but even then, they will pull the plug from root which is domain host.

Joshua Darlington
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Communication infrastructure like Megaupload should not be prosecuted for illegal content.

The phone and cable companies are the main distrubuters of pirated content. However, if they were legally responsible for the actions of their users, it would require them to open and sniff every packet. It would essentailly end all web privacy.

Kassim Adewale
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When I read little of SOPA and PIPA, I wanted to participate by notification, but most sites require residing in USA only.

If they pass these bills it will pull the plug out of most freeware games.

“Digital distribution channels (we’ve already seen what happened to MegaUpload), including Steam and Impulse, would also be at risk for the same reason".

Whether small or big will go down imagine Apple App Store, Amazon, Intel Appup, Google Android Market and Microsoft xBox Live centers will be at risk.

Everyone remember Google Packman saga, if we are in SOPA and PIPA era, Google may still be singing lullaby in court now.

It can also be abuse from different perspective like easy opponent denial of service attack by allowing 1 or 2 of the hacker community member to join a blogofficial site and become member, which give access to the ability to post infringement materials and the same group will notify the feds and the 3rd party that owns the material later. My enemy's enemy is my friend.

It is easier to write intelligent code to beat robot, but not material submission so Website masters will not sleep again!

All posted contents will be scrutinized before acceptance which can delay most dynamic sites.

Websites will become watchdog of each other, it will be chaos!

Even OPEN can still be abuse, but the problem they will face can be liken to poor clients in rags and rich clients all seeking pro-bono lawyers assistance, there will be so many cases to solve.

Thanks Mona for sharing this.