Last week—less than two months after winning control over the Spanish parliament—the right-leaning Partido Popular passed a controversial new anti-internet piracy law that will impose strict penalties on website owners who fail to remove copyrighted material from their sites. Sound familiar? The law, named after the Culture Minister Angeles Gonzalez-Sinde, gives the Spanish government nearly the same broad ranging authority found in the proposed SOPA law, which is now grinding through the gears of the U.S. Congress. Unlike SOPA, which targets infringing websites and users, the Sinde law focuses only on those who are making money from copyrighted content online. Owners of the material can now complain to a government commission that can issue an order to block a website's service. Rosa Maria Garcia Sanz, a professor in the department of communication law at the University of Madrid Complutense, explained how a take down by the panel would work.
"It´s a governmental commission, whose members are appointed by representatives from the Ministries of Culture, Industry, Tourism and Commerce. It should be made clear that it is not a court, but a court will intervene at different points in the process. It will receive complaints from the holders of the copyrights. Regarding the criteria, it´s quite broad because they have the authority to accept or refuse any complaints they wish. Those who are submitting the complaints have to meet requirements in order for the commission to accept that complaint, such as to identify the website owner where the copyright infringement is occurring and to present the content and links that are infringing on their copyright.
The owners of the websites have the ability to present arguments before the commission within a very narrow deadline (three days) to justify their activities...After a resolution of removal from the commission, the ISPs have 24 hours to block the service or to remove the content, and the website owners have no access to appeal. If website owners don´t remove the content voluntarily, a court (not the commission) will intervene to close down the website or to block the service, requiring to the ISPs to reveal the identity of t infringers."
The law was initially brought up for consideration and rejected in 2010. Evidence obtained by the Spanish paper El Pais suggests that the U.S. has been pushing hard for reevaluation of the measure ever since, using trade agreements as leverage to prod the Spanish government to resurrect the law. It's no surprise that the United States has shown such interest. Piracy is epidemic in Spain. Thirty percent of the population uses file-sharing sites, often to download Hollywood movies.
But there are good reasons to think that the Sinde law will only encourage more of this behavior. Because the law only goes after the content provider and leaves intact an individual's right to a digital copy, it may actually encourage Spanish citizens to use peer-to-peer file sharing, says Sanz.
In fact, there is little evidence to suggest that the enforcement strategies called for by the new law actually work to stop illegal downloading. France passed a law in 2009, known as HADOPI or the "three strikes" law. It gives the government the authority to interrupt service for individuals who are caught downloading illegal content after they've received two warnings. Plenty of people took the legislation more as a challenge than a threat; many immediately began avoiding detection, thereby sidestepping the regulation, with the aid of VPN servers.
The Sinde law will be just as tough to enforce, according to professor Sanz.
"Even blocking domain names system (DNS) sites would just encourage users to use alternative and unregulated DNS servers. In other words, there is a real problem of applying the law because it so easy to circumvent the technical barriers used to block users from reaching the websites."
The same will be true in the United States, where SOPA has been held up in the House Judiciary Committee since December, and a community of programmers and engineers has declared war on companies that come out in support of the measure. Developers are already providing tools to circumvent the legislation. The Firefox add-on "DeSopa" was written as a proof-of-concept, but if implemented, would allow users to resolve blocked domains by obtaining an IP address through foreign DNS servers.
But these kinds of solutions, which would most certainly become popular if SOPA were enacted, carry serious security concerns. They would most likely increase the incidence of DNS hijacking, whereby an attacker redirects queries to a faulty, and potentially malicious IP address. Security analysts at Sandia National Laboratories raised these concerns in response to both the Senate and House versions of the bill, calling the DNS filtering mandate a fruitless, "'whack-a-mole' approach that would only encourage users and offending websites to resort to low cost workarounds."
It's unclear how seriously the members of Congress are taking the advice. As they pause to catch their breaths after the first round of this battle, they might consider taking an even bigger step back to watch how this fragile experiment pans out overseas—and to see whether these extreme measures actually bring about the intended results.