For a while, ever since they lost in court, a number of industry giants have pushed a bill that purported to be about increasing access to the law. In fact, it would give them enormous power over the public ability to access, share, teach, and comment on the law.  

This sounds crazy—no one should be able to own the law. But these industry associations claim there’s a glaring exception to the rule: safety and building codes. The key distinction, they insist, is how these particular laws are developed. Often, when it comes to creating the best practices for an industry, a group of experts comes together to draft model standards. Many of those standards are then “incorporated by reference” into law, making them legal mandates just are surely as the U.S. tax code. 

But unlike most U.S. laws, the industry association that convene the experts claim that they own a copyright in the results, which means they get to control – and charge for—access to them. 

The consequences aren’t hard to imagine. If you are a journalist trying to figure out if a bridge that collapsed violated legal safety standards, you have to get the standards from the industry association, and pay for it. If you are renter who wants to know whether your apartment complies with the fire code, you face the same barrier.  And so on. 

Many organizations are working to remedy the situation, making standards available online for free (or, in some cases, for free but with a “premium” version that offers additional services on top). Courts around the country have affirmed their right to do so. 

Which brings us to the “Protecting and Enhancing Public Access to Codes Act” or “Pro Codes.” The Act requires industry associations to make standards incorporated by reference into law available for free to the public. But here’s the kicker – in exchange Congress will affirm that they have a legitimate copyright in those laws.    

This is bad deal for the public. First, access will mean read-only, and subject to licensing limits.  We already know what that looks like: currently the associations that make their codes available to the public online do so through clunky, disorganized, siloed websites, largely inaccessible to the print-disabled, and subject to onerous contractual terms (like a requirement to give up your personal information). The public can’t copy, print, or even link to specific portions of the codes. In other words, you can look at the law (as long as you aren’t print-disabled and you know exactly what to look for), but you can’t share it, compare it, or comment on it. That’s fundamentally against the public interest, as many have said. It gives private parties a windfall to do badly what others, like EFF client Public Resources Online, already do better and for free. 

Second, it’s solving a nonexistent problem. The many volunteers who develop these codes neither need nor want a copyright incentive. The industry associations don’t need it either—they make plenty of profit though trainings, membership fees, and selling standards that haven’t been incorporated into law.   

Third, it’s unconstitutional under the First, Fifth, and Fourteenth Amendments, which guarantee the public’s right to read, share, and discuss the law.   

We’re pleased that members of Congress have recognized the many problems with this law. Many of you wrote to your members to raise concerns and when it was brought to a vote in committee, members registered those concerns. While it passed out of the House Judiciary Committee, the House of Representatives was asked to vote on the law “on suspension,” meaning it can avoid debate and become law if two-thirds of the House vote yes on it. In theory, it’s meant to make it easier to pass uncontroversial laws. 

Because you wrote in, because experts sent letters explaining the problems, enough members of Congress recognized that Pro Codes is not uncontroversial. It is not a small deal to allow industry giants to own parts of the law.  

This year, we are glad that so many people lent their time and energy to understanding the wolf in sheep’s clothing that the Pro Codes Act really was. And we hope that SDOs take note that they cannot pull the wool over everyone’s eyes. Not while we’re keeping watch.

This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2024.

The promise of the internet—at least in the early days—was that it would lower the barriers to entry for any number of careers. Traditionally, the spheres of novel writing, culture criticism, and journalism were populated by well-off straight white men, with anyone not meeting one of those criteria being an outlier. Add in giant corporations acting as gatekeepers to those spheres and it was a very homogenous culture. The internet has changed that. 

There is a lot about the internet that needs fixing, but the one thing we should preserve and nurture is the nontraditional paths to success it creates. In this series of interviews, called “Gate Crashing,” we look to highlight those people and learn from their examples. In an ideal world, lawmakers will be guided by lived experiences like these when thinking about new internet legislation or policy. 

In our first video, we look at creators who honed their media criticism skills in fandom spaces. Please join Gavia Baker-Whitelaw and Elizabeth Minkel, co-creators of the Rec Center newsletter, in a wide-ranging discussion about how they got started, where it has led them, and what they’ve learned about internet culture and policy along the way. 

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Antitrust law has long recognized that monopolies stifle innovation and gouge consumers on price. When it comes to Big Tech, harm to innovation—in the form of  “kill zones,” where major corporations buy up new entrants to a market before they can compete with them—has been easy to find. Consumer harms have been harder to quantify, since a lot of services the Big Tech companies offer are “free.” This is why we must move beyond price as the major determinator of consumer harm. And once that’s done, it’s easier to see even greater benefits competition brings to the greater internet ecosystem. 

In the decades since the internet entered our lives, it has changed from a wholly new and untested environment to one where a few major players dominate everyone's experience. Policymakers have been slow to adapt and have equated what's good for the whole internet with what is good for those companies. Instead of a balanced ecosystem, we have a monoculture. We need to eliminate the build up of power around the giants and instead have fertile soil for new growth.

Content Moderation 

In content moderation, for example, it’s basically rote for experts to say that content moderation is impossible at scale. Facebook reports over three billion active users and is available in over 100 languages. However, Facebook is an American company that primarily does its business in English. Communication, in every culture, is heavily dependent on context. Even if it was hiring experts in every language it is in, which it manifestly is not, the company itself runs on American values. Being able to choose a social media service rooted in your own culture and language is important. It’s not that people have to choose that service, but it’s important that they have the option.  

This sometimes happens in smaller fora. For example, the knitting website Ravelry, a central hub for patterns and discussions about yarn, banned all discussions about then-President Donald Trump in 2019, as it was getting toxic. A number of disgruntled users banded together to make their disallowed content available in other places. 

In a competitive landscape, instead of demanding that Facebook or Twitter, or YouTube have the exact content rules you want, you could pick a service with the ones you want. If you want everything protected by the First Amendment, you could find it. If you want an environment with clear rules, consistently enforced, you could find that. Especially since smaller platforms could actually enforce its rules, unlike the current behemoths.  

Product Quality 

The same thing applies to product quality and the “enshittification” of platforms. Even if all of Facebook’s users spoke the same language, that’s no guarantee that they share the same values, needs, or wants. But, Facebook is an American company and it conducts its business largely in English and according to American cultural norms. As it is, Facebook’s feeds are designed to maximize user engagement and time on the service. Some people may like the recommendation algorithm, but other may want the traditional chronological feed. There’s no incentive for Facebook to offer the choice because it is not concerned with losing users to a competitor that does. It’s concerned with being able to serve as many ads to as many people as possible. In general, Facebook lacks user controls that would allow people to customize their experience on the site. That includes the ability to reorganize your feed to be chronological, to eliminate posts from anyone you don’t know, etc. There may be people who like the current, ad-focused algorithm, but no one else can get a product they would like. 

Another obvious example is how much the experience of googling something has deteriorated. It’s almost hack to complain about it now, but when when it started, Google was revolutionary in its ability to a) find exactly what you were searching for and b) allow normal language searching (that is, not requiring you to use boolean searches in order to get the desired result). Google’s secret sauce was, for a long time, the ability to find the right result to a totally unique search query. If you could remember some specific string of words in the thing you were looking for, Google could find it. However, in the endless hunt for “growth,” Google moved away from quality search results and towards quantity.  It also clogged the first page of results with ads and sponsored links.  

Morals, Privacy, and Security 

There are many individuals and small businesses that would like to avoid using Big Tech services, either because they are bad or because they have ethical and moral concerns. But, the bigger they are, the harder it is to avoid. For example, even if someone decides not to buy products from Amazon.com because they don’t agree with how it treats its workers, they may not be able to avoid patronizing Amazon Web Services (AWS), which funds the commerce side of the business. Netflix, The Guardian, Twitter, and Nordstrom are all companies that pay for Amazon’s services. The Mississippi Department of Employment Security moved its data management to Amazon in 2021. Trying to avoid Amazon entirely is functionally impossible. This means that there is no way for people to “vote with their feet,” withholding their business from companies they disagree with.  

Security and privacy are also at risk without competition. For one thing, it’s easier for a malicious actor or oppressive state to get what they want when it’s all in the hands of a single company—a single point of failure. When a single company controls the tools everyone relies on, an outage cripples the globe. This digital monoculture was on display during this year's Crowdstrike outage, where one badly-thought-out update crashed networks across the world and across industries. The personal danger of digital monoculture shows itself when Facebook messages are used in a criminal investigation against a mother and daughter discussing abortion and in “geofence warrants” that demand Google turn over information about every device within a certain distance of a crime. For another thing, when everyone is only able to share expression in a few places that makes it easier for regimes to target certain speech and for gatekeepers to maintain control over creativity.  

Another example of the relationship between privacy and competition is Google’s so-called “Privacy Sandbox.” Google’s messaged it as removing “third-party cookies” that track you across the internet. However, the change actually just moved that data into the sole control of Google, helping cement its ad monopoly. Instead of eliminating tracking, the Privacy Sandbox does tracking within the browser directly, allowing Google to charge for access to the insights gleaned from your browsing history with advertisers and websites, rather than those companies doing it themselves. It’s not more privacy, it’s just concentrated control of data. 

You see this same thing at play with Apple’s app store in the saga of Beeper Mini, an app that allowed secure communications through iMessage between Apple and non-Apple phones. In doing so, it eliminated the dreaded “green bubbles” that indicated that messages were not encrypted (ie not between two iPhones). While Apple’s design choice was, in theory, meant to flag that your conversation wasn’t secure, it ended up being a design choice that motivated people to get iPhones just to avoid the stigma. Beeper Mini made messages more secure and removed the need to get a whole new phone to get rid of the green bubble. So Apple moved to break Beeper Mini, effectively choosing monopoly over security. If Apple had moved to secure non-iPhone messages on its own, that would be one thing. But it didn’t, it just prevented users from securing them on their own.  

Obviously, competition isn’t a panacea. But, like privacy, its prioritization means less emergency firefighting and more fire prevention. Think of it as a controlled burn—removing the dross that smothers new growth and allows fires to rage larger than ever before.  

Twelve years ago, internet users spoke up with one voice to reject a law that would build censorship into the internet at a fundamental level. This week, the Motion Picture Association (MPA), a group that represents six giant movie and TV studios, announced that it hoped we’d all forgotten how dangerous this idea was. The MPA is wrong. We remember, and the internet remembers.

What the MPA wants is the power to block entire websites, everywhere in the U.S., using the same tools as repressive regimes like China and Russia. To it, instances of possible copyright infringement should be played like a trump card to shut off our access to entire websites, regardless of the other legal speech hosted there. It is not simply calling for the ability to take down instances of infringement—a power they already have, without even having to ask a judge—but for the keys to the internet. Building new architectures of censorship would hurt everyone, and doesn’t help artists.

The bills known as SOPA/PIPA would have created a new, rapid path for copyright holders like the major studios to use court orders against sites they accuse of infringing copyright. Internet service providers (ISPs) receiving one of those orders would have to block all of their customers from accessing the identified websites. The orders would also apply to domain name registries and registrars, and potentially other companies and organizations that make up the internet’s basic infrastructure. To comply, all of those would have to build new infrastructure dedicated to site-blocking, inviting over-blocking and all kinds of abuse that would censor lawful and important speech.

In other words, the right to choose what websites you visit would be taken away from you and given to giant media companies and ISPs. And the very shape of the internet would have to be changed to allow it.

In 2012, it seemed like SOPA/PIPA, backed by major corporations used to getting what they want from Congress, was on the fast track to becoming law. But a grassroots movement of diverse Internet communities came together to fight it. Digital rights groups like EFF, Public Knowledge, and many more joined with editor communities from sites like Reddit and Wikipedia to speak up. Newly formed grassroots groups like Demand Progress and Fight for the Future added their voices to those calling out the dangers of this new form of censorship. In the final days of the campaign, giant tech companies like Google and Facebook (now Meta) joined in opposition as well.

What resulted was one of the biggest protests ever seen against a piece of legislation. Congress was flooded with calls and emails from ordinary people concerned about this steamroller of censorship. Members of Congress raced one another to withdraw their support for the bills. The bills died, and so did site blocking legislation in the US. It was, all told, a success story for the public interest.

Even the MPA, one of the biggest forces behind SOPA/PIPA, claimed to have moved on. But we never believed it, and they proved us right time and time again. The MPA backed site-blocking laws in other countries. Rightsholders continued to ask US courts for site-blocking orders, often winning them without a new law. Even the lobbying of Congress for a new law never really went away. It’s just that today, with MPA president Charles Rivkin openly calling on Congress “to enact judicial site-blocking legislation here in the United States,” the MPA is taking its mask off.

Things have changed since 2012. Tech platforms that were once seen as innovators have become behemoths, part of the establishment rather than underdogs. The Silicon Valley-based video streamer Netflix illustrated this when it joined MPA in 2019. And the entertainment companies have also tried to pivot into being tech companies. Somehow, they are adopting each other’s worst aspects.

But it’s important not to let those changes hide the fact that those hurt by this proposal are not Big Tech but regular internet users. Internet platforms big and small are still where ordinary users and creators find their voice, connect with audiences, and participate in politics and culture, mostly in legal—and legally protected—ways. Filmmakers who can’t get a distribution deal from a giant movie house still reach audiences on YouTube. Culture critics still reach audiences through zines and newsletters. The typical users of these platforms don’t have the giant megaphones of major studios, record labels, or publishers. Site-blocking legislation, whether called SOPA/PIPA, “no fault injunctions,” or by any other name, still threatens the free expression of all of these citizens and creators.

No matter what the MPA wants to claim, this does not help artists. Artists want their work seen, not locked away for a tax write-off. They wanted a fair deal, not nearly five months of strikes. They want studios to make more small and midsize films and to take a chance on new voices. They have been incredibly clear about what they want, and this is not it.

Even if Rivkin’s claim of an “unflinching commitment to the First Amendment” was credible from a group that seems to think it has a monopoly on free expression—and which just tried to consign the future of its own artists to the gig economy—a site-blocking law would not be used only by Hollywood studios. Anyone with a copyright and the means to hire a lawyer could wield the hammer of site-blocking. And here’s the thing: we already know that copyright claims are used as tools of censorship.

The notice-and-takedown system created by the Digital Millennium Copyright Act, for example, is abused time and again by people who claim to be enforcing their copyrights, and also by folks who simply want to make speech they don’t like disappear from the Internet. Even without a site-blocking law, major record labels and US Immigration and Customs Enforcement shut down a popular hip hop music blog and kept it off the internet for over a year without ever showing that it infringed copyright. And unscrupulous characters use accusations of infringement to extort money from website owners, or even force them into carrying spam links.

This censorious abuse, whether intentional or accidental, is far more damaging when it targets the internet’s infrastructure. Blocking entire websites or groups of websites is imprecise, inevitably bringing down lawful speech along with whatever was targeted. For example, suits by Microsoft intended to shut down malicious botnets caused thousands of legitimate users to lose access to the domain names they depended on. There is, in short, no effective safeguard on a new censorship power that would be the internet’s version of police seizing printing presses.

Even if this didn’t endanger free expression on its own, once new tools exist, they can be used for more than copyright. Just as malfunctioning copyright filters were adapted into the malfunctioning filters used for “adult content” on tumblr, so can means of site blocking. The major companies of a single industry should not get to dictate the future of free speech online.

Why the MPA is announcing this now is anyone’s guess. They might think no one cares anymore. They’re wrong. Internet users rejected site blocking in 2012 and they reject it today.

We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, addressing what's at stake and what we need to do to make sure that copyright promotes creativity and innovation.

As Copyright Week comes to a close, it’s worth remembering why we have it in January. Twelve years ago, a diverse coalition of internet users, websites, and public interest activists took to the internet to protest SOPA/PIPA, proposed laws that would have, among other things, blocked access to websites if they were alleged to be used for copyright infringement. More than a decade on, there still is no way to do this without causing irreparable harm to legal online expression.

A lot has changed in twelve years. Among those changes is a major shift in how we, and legislators, view technology companies. What once were new innovations have become behemoths. And what once were underdogs are now the establishment.

What has not changed, however, is the fact that much of what internet platforms are used for is legal, protected, expression. Moreover, the typical users of those platforms are those without access to the megaphones of major studios, record labels, or publishers. Any attempt to resurrect SOPA/PIPA—no matter what it is rebranded as—remains a threat to that expression.

Site-blocking, sometimes called a “no-fault injunction,” functionally allows a rightsholder to prevent access to an entire website based on accusations of copyright infringement. Not just access to the alleged infringement, but the entire website. It is using a chainsaw to trim your nails.

We are all so used to the Digital Millennium Copyright Act (DMCA) and the safe harbor it provides that we sometimes forget how extraordinary the relief it provides really is. Instead of providing proof of their claims to a judge or jury, rightsholders merely have to contact a website with their honest belief that their copyright is being infringed, and the allegedly infringing material will be taken down almost immediately. That is a vast difference from traditional methods of shutting down expression.

Site-blocking would go even further, bypassing the website and getting internet service providers to deny their customers access to a website. This clearly imperils the expression of those not even accused of infringement, and it’s far too blunt an instrument for the problem it’s meant to solve. We remain opposed to any attempts to do this. We have a long memory, and twelve years isn’t even that long.

We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, addressing what's at stake and what we need to do to make sure that copyright promotes creativity and innovation.

Copyright law affects so much of our daily lives, and new technologies have only helped make everyone more and more aware of it. For example, while 1998’s Digital Millennium Copyright Act helped spur the growth of platforms for creating and sharing art, music and literature, it also helped make the phrase “blocked due to a claim by the copyright holder” so ubiquitous.

Copyright law helps shape the movies we watch, the books we read, and the music we listen to. But it also impacts everything from who can fix a tractor to what information is available to us to when we communicate online. Given that power, it’s crucial that copyright law and policy serve everyone.

Unfortunately, that’s not the way it tends to work. Instead, copyright law is often treated as the exclusive domain of major media and entertainment industries. Individual artists don’t often find that copyright does what it is meant to do, i.e. “promote the progress of science and useful arts” by giving them a way to live off of the work they’ve done. The promise of the internet was to help eliminate barriers between creators and audiences, so that voices that traditional gatekeepers ignored could still find success. Through copyright, those gatekeepers have found ways to once again control what we see.

12 years ago, a diverse coalition of Internet users, non-profit groups, and Internet companies defeated the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA), bills that would have forced Internet companies to blacklist and block websites accused of hosting copyright-infringing content. These were bills that would have made censorship very easy, all in the name of copyright protection.

We continue to fight for a version of copyright that truly serves the public interest. And so, every year, EFF and a number of diverse organizations participate in Copyright Week. Each year, we pick five copyright issues to highlight and promote a set of principles that should guide copyright law and policy. This year’s issues are:

• Monday: Public Domain
  The public domain is our cultural commons and a crucial resource for innovation and access to knowledge. Copyright should strive to promote, and not diminish, a robust, accessible public domain.
• Tuesday: Device and Digital Ownership 
  As the things we buy increasingly exist either in digital form or as devices with software, we also find ourselves subject to onerous licensing agreements and technological restrictions. If you buy something, you should be able to truly own it – meaning you can learn how it works, repair it, remove unwanted features, or tinker with it to make it work in a new way.
• Wednesday: Copyright and AI
  The growing availability of AI, especially generative AI trained on datasets that include copyrightable material, has raised new debates about copyright law. It’s important to remember the limitations of copyright law in giving the kind of protections creators are looking for.
• Thursday: Free Expression and Fair Use 
  Copyright policy should encourage creativity, not hamper it. Fair use makes it possible for us to comment, criticize, and rework our common culture.
• Friday: Copyright Enforcement as a Tool of Censorship
  Freedom of expression is a fundamental human right essential to a functioning democracy. Copyright should encourage more speech, not act as a legal cudgel to silence it.

Every day this week, we’ll be sharing links to blog posts and actions on these topics at https://www.eff.org/copyrightweek and at #CopyrightWeek on X, formerly known as Twitter.