Are We Heading Toward SOPA/PIPA 2024?

Earlier this month, Motion Picture Association (MPA) CEO Charles Rivkin announced that his organization, which represents all the major film studios, would begin working with Congress to pass new rules for blocking websites with pirated content.

On one hand, this idea doesn’t sound that extreme at all. Other nations, including the European Union, Australia, and the United Kingdom, have site-blocking provisions in their books, and many have had them for over a decade.

However, for those with longer memories, the announcement instantly harkens back to the controversy over the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA) from late 2011 and early 2012.

Those debates and the protests from January 2012 were notoriously fierce. Many of the internet’s largest sites and companies, including Google and Wikipedia, participated in them. Eventually, the backlash forced the bills’ supporters to back down. Site blocking seemed to be dead in the United States.

However, a lot has changed over the past 12 years. The MPA, rightly or wrongly, feels that now is a good time to make another run at this. That leads to a simple question: Are they right?

The answer is complicated. But there are a lot of reasons to think they might be right.

Party Like It’s 2012

The debate over SOPA and PIPA came to a head on January 18, 2012. That was the day of massive internet-wide protests against the bill. Many popular websites blacked out their home pages and encouraged users to contact their representatives to encourage them to vote against the bills.

The campaigns worked. Two important backers dropped their support almost immediately and, within days after the protests started, the bills were functionally dead. SOPA and PIPA were crushed.

As I discussed in my piece on the bills, I was neither a supporter nor a detractor. Site blocking would never be particularly useful to me or the people I work with in my consulting practice. I questioned the effectiveness of site blocking and acknowledged some legitimate concerns. Still, I also understood that the internet is global, and site blocking is one of the few tools to address international piracy.

My problem with the protests is that they were dishonest. They began with the SOPA predecessor, the Commercial Felony Streaming Act, where they falsely claimed that it would put Justin Bieber in jail.

When SOPA and PIPA were proposed, detractors alleged they would “Break the Web” or censor random sites. The protests were stoked by scary-looking graphics showing censored text on a website or Wikipedia being inaccessible.

These were false narratives that either weren’t in the bills or were extreme interpretations of what they did say. We know this was deliberate because, in a blog post a month before, Wikimedia Foundation’s general counsel outlined how it would impact the site. The answer was not much, other than removing some pirate site links.

To be clear, there were and are legitimate concerns with site blocking. But those concerns are nuanced and complicated. Rather than try to educate about the bills, detractors opted for heavy-handed scare tactics that misled more than educate.

However, those tactics worked, and site blocking has been dead in the US for over a decade. So what changed?

12 Years of Change

Though site blocking was dead in the United States, it was (and still is) very much alive in the rest of the world.

However, it wasn’t new legislation that enabled it. In most cases, courts interpreted existing laws to require ISPs to block websites.

For example, in October 2013, BPI obtained a court order that required ISPs in the country to block some 21 file-sharing websites. This led to a private agreement between ISPs and rightsholders to block access to pirate sites after obtaining a court order.

Site blocking became the norm in much of the world with very little fanfare. However, none of the dire predictions of widespread censorship or internet breaking ever came to pass. Though there have been instances of over-blocking, they were limited and fixed quickly. They’ve also become more rare as time has gone on.

However, the biggest analog to the SOPA and PIPA protests in 2012 wasn’t over site blocking at all. It was over EU proposals to require sites to filter uploads for infringing material and create a “link tax” for using thumbnails and snippets from news sites.

A similar online protest took place in March 2019. However, the European Parliament passed the measure in a close but still decisive vote.

Though the provision still faces many challenges today, the protest’s failure was a marked difference from seven years prior. While there were many differences, including the timing of the protest and the nature of the EU Parliament, several differences were relevant to the MPA.

First, citizens and legislators mistrust Google, Facebook and other large tech companies more strongly. While this was much stronger in the EU since these companies are also American, their reputation has taken a hit in the US as well.

Second, the dire predictions from the SOPA/PIPA protests never came to pass. Site blocking is now the norm in most of the world, and none of the predicted nightmare scenarios have happened. Why would legislators believe similar dire warnings about this bill?

Finally, no legislators who proposed or supported SOPA/PIPA faced repercussions. Lamar Smith, the face of the bills, was reelected to the House three times before announcing his retirement in 2018. No one was voted out of office for their role in the bills.

In short, there was no reason for the EU Parliament to take the online protests seriously, especially when they didn’t translate into large physical-world protests. In 2024, legislators in the United States will likely feel the same way.

Bottom Line

To be clear, the MPA simply announced that they would start lobbying for site-blocking provisions. It’s entirely possible that these efforts could go nowhere and that this is the last we will ever hear of it. However, if something does come of it, it is likely years away.

But if it does come up again, I would not expect a simple repeat of 2012. A lot has changed in the last 12 years. The misinformation from the 2012 protest has been proven to be false. Legislators have much less reason to fear this kind of online protest, and tech companies don’t have the reputation they enjoyed a decade ago.

If opponents of site blocking want to defeat it in 2024 and beyond, they will likely need a different playbook.

That said, it is easy to see why the MPA feels now may be a good time to revisit this subject. The world has changed, and we now have real-world proof of what happens when such a regime is implemented.

Site blocking is no longer theoretical, and data suggests that it has at least some positive impact on legal consumption. While legitimate concerns and problems remain, they are more nuanced and don’t play well to scare tactics.

In short, it will be a very different battle if site blocking does make a return. Though site blocking may come back, it’s not likely that 2012 will come back with it.