This article was published on January 18, 2012 and the information contained within may become inaccurate as the bill, its support, and opposition continue to rapidly evolve. This article is longer than our typical blog post and continues after the jump.
Much has been written about the Stop Internet Piracy Act (SOPA) in recent months – most of it important, all of it passionate, but through all the fervent positioning, the actual contents of the proposed bill can easily be missed. The purpose of the bill is to expand intellectual property protections on the internet by making it easier for content owners to stop the spread of infringing materials on foreign-based websites. However, the bill has received pushback by vehement detractors who believe that SOPA will lead to abuse of websites by copyright holders, infringe on free speech rights, and possibly even disrupt the functionality and security of the internet. The purpose of this article is to wade through the hype of what the bill does and does not do and to discuss what will actually happen to website owners if SOPA passes in its current form. SOPA has a corollary bill in the U.S. Senate entitled the PROTECT IP Act, also known as PIPA, which has many of the same purposes as SOPA. This article focuses on SOPA because, as it currently stands, most of the effort and emphasis in Congress and the media is on SOPA. If SOPA fails, PIPA may become the more important bill.
SOPA was introduced in October of 2011 by Representative Lamar Smith and quietly gained widespread support from both sides of the aisle as well as from many businesses and arts organization. Because of the huge initial push, SOPA seemed destined to fly through House. Because this bill would primarily benefit very few (mostly large media corporations) to the detriment of many (most internet users), quick and quiet passage was likely its best chance for making its way out of the House and into the Senate. However, opposition for the bill built quickly after a widely publicized committee hearing where supporters of the bill and members of the House failed to show a strong understanding of the implications of the bill. Since then, SOPA has been hotly debated and will likely not see a full House vote until March 2012.
What is perhaps most important to understand, and can be easily lost in the push and pull of the debate is that SOPA is intended to block infringement only of foreign-based websites and has actually been amended to make this more clear. While there are certainly legitimate complaints about SOPA, the idea that SOPA can be used to shutdown U.S. sites like Google and YouTube is now no longer a reality.
Action by the Attorney General
SOPA’s protections, as currently written, are divided into two types of actions available to copyright holders who believed they are being infringed upon. First, SOPA allows the Attorney General of the United States to proceed against foreign infringing websites. Interestingly, this provision allows the AG to go beyond the usual jurisdictional limits of the U.S. border and take action against websites it would otherwise have no jurisdiction over. Once the Attorney General has obtained a court order, it can try to shut down the website, but this will be difficult as the website is foreign-based and the expanded jurisdiction will not reach this far. Therefore SOPA allows the Attorney General to proceed with any of the following approaches:
- Force internet service providers (ISPs) to take “reasonable measures” to prevent access of its subscribers to the infringing site, in effect telling each ISP that it must block the website from its customers. The “reasonable measures” language has been augmented and made less intrusive to the ISPs to say that they must take the “least burdensome” technical action. However, it is still entirely unclear what these measures should be and what a court might actually consider “least burdensome.”
- Force internet search engines, such as Google, to remove links to the infringing website from search results
- Force payment network providers, such as Paypal, to discontinue dealing with the infringing website
- Stop internet advertisers from advertising and compensating the infringing website
Private Action Under SOPA
Next, SOPA gives copyright holders another approach to stopping infringing websites. First, the language lists a variety of ways a website may be subject to attack. The language was originally written in a way that could be read to include U.S.-based sites, but it has since been amended to include only foreign-based websites. This cause of action is available against websites that are “dedicated to the theft of U.S. property.” A website is deemed “dedicated to the theft of U.S. property” if it directed towards the U.S. and meets any of the following conditions:
- The website is “primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operators or another acting in concert with the operator for use in, offering goods or services in a manner that violates [any copyright or counterfeit provisions of the US Code].” SOPA detractors have claimed that this language is too broad, but this language is suggestive of the language used by the US Supreme Court when allowing the continued sale of VCRs (VCRs have a substantial legitimate use besides infringing copyrighted material) and when shutting down the peer-to-peer filing sharing sites like Grokster and Limewire (even if there is a substantial non-infringing use, if the service advertises its site as being useful for infringement, this is secondary liability for copyright infringement, and thus not allowed).
- The website has “taken deliberate actions to avoid confirming a high probability of the use of [the site] to carry out acts that constitute a violation of [the copyright code].” This language is certainly vague and quite broad. The way it is written suggests that if a website does not want to play ball with infringement accusers, it could be subject to sanctions simply because it refuses to bend to the will of copyright holders. This language should be a cause for concern.
- The website operates with the object of promoting its use to carry out acts that constitute copyright violations. Again, this mirrors the Grokster ruling that deems advertising the ease of infringement with your service as creating secondary liability for copyright infringement.
Next, this section of SOPA gives IP owners a two-step process where they first notify payment network providers (such as Paypal) or internet advertising services that the website those entities are dealing with are infringing on the owner’s rights. Then, the payment network provider or internet advertising service must forward the notification to the website holder who has an opportunity for a counter-notification. However, to properly comply with the SOPA counter-notification terms, the website must both 1) consent to U.S. service of process if a foreign site and 2) make any statement under penalty of perjury. This is troublesome because such a website in a non-court proceeding accusation must forfeit some of its rights just to respond to the accusation. Then, even if the website offers a valid counter-notification, the IP owner can still apply to the courts for limited injunctive relief against the website.
The next sections of SOPA offer an important additional provision that will give the proposed bill more power. Section 104 gives immunity to service providers, payment network providers, advertising services, search engines, domain name registries, and domain name registrars who take voluntary action against possibly infringing websites. The immunity will give these entities the incentive to be trigger happy when it comes to blocking allegedly infringing sites. It follows that when weighing their options, these entities will always lean towards blocking sites to avoid any trouble rather than investigating to see whether the allegedly infringing website should actually be blocked under the bill.
Arguments in Favor of SOPA
The main arguments for SOPA focus on stopping the infringement of intellectual property, mostly of music and movies, on the internet (as well as some provisions designed to stop the spread of counterfeit pharmaceuticals). Therefore it is no surprise that two of the biggest backers of the bill are the MPAA and RIAA, respectively the largest movie and music trade groups in the United States. However, the biggest advocate has been perhaps the U.S. Chamber of Commerce, who supported their stance in a letter to the New York Times, dated November 18, 2011, writing, “Rogue Web sites that steal America’s innovative and creative products attract more than 53 billion visits a year and threaten more than 19 million American jobs.”
The argument has been further couched in terms of economic impact. First, proponents argue that stopping the theft of intellectual property will aid content owners by stopping the uncompensated dissemination of their music and movies. Second, supporters claim that SOPA will change the status quo of rampant infringement and encourage ISPs and website owners to be more proactive, rather than reactive, in keeping their websites free from infringing materials – again aiding content owners.
Arguments Against SOPA
The opponents of SOPA are many and include nearly all of the largest internet players including Google, Facebook, Twitter, AOL, and Yahoo. Ultimately, the arguments for SOPA are rooted in its title: stopping piracy. However its approach is not to stop piracy but to stop consumers from getting to piracy by forcing the ISPs and other web-based utilities like online advertisers and payment collectors like Paypal to police the activities of their users. In effect, SOPA will shift the costs of infringement from the entertainment industry to the internet industry. The arguments against SOPA are numerous and what follows are some of the most important ones.
First, opponents believe that SOPA raises major freedom of speech concerns because the bill could cause entire websites to be stricken from the web, taking all content of a website down because of instances of possibly infringing material. The bill does contain a Savings Clause, however the clause is written in such a way to be superfluous and ineffective. The Clause reads, “Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution.” The way this is written, rather than saying that SOPA enforcement should be blocked when there are free speech concerns, seems to tie the court’s hands by saying that enforcement of SOPA should not be considered to be a restraint on free speech – in effect that freedom of speech concerns will not be a valid defense to enforcement.
Next, critics argue that many content-rich websites populated with mostly user-generated material, such as foreign websites similar to Youtube or Etsy, could be completely blocked, which would be a detriment to users of these types of popular internet destinations. Furthering this, websites with user generated content typically rely on the DMCA take-down procedures to avoid liability for infringement, but critics argue that SOPA would replace this relied upon system and instead lead to websites to just be taken down. Next, users who upload infringing content would be exposed to criminal prosecution. Critics argue that the language in the bill that supports criminal prosecution is so poorly drafted that it is difficult to predict the full criminal reach of the bill.
From a technical perspective, the bill has greatly concerned technical experts because it asks ISPs to block users from getting to specific websites. The most obvious way to do this is through the Domain Name System (DNS) by rerouting user-directed web requests away from blacklisted sites. Tech experts argue that the DNSSEC, the security aspect of DNS is not built to handle the rerouting of domain queries and will lead to major outages of service similar to what has been seen from censorship-heavy countries like China and Pakistan employing this exact approach. Furthermore, if a site is blacklisted, every ISP will need to reroute the domain name query, an undertaking that experts believe is nearly impossible. In addition, experts have argued that the order of website-blocking by judges could lead to deep packet inspection, a method of peeking into the activities of internet users, which is considered by many to be highly intrusive and an invasion of privacy. Ultimately, it is likely that such blocking will be ineffective and lead to serious interruptions in the security and quality of the internet. Simply, this type of toying with internet routing systems would not work effectively and would likely cause major services issues. Technical experts so resoundingly agree about the technical enforcement issues of the bill that this alone should kill it.
From a societal perspective, critics have argued that this bill would mark a change in our societal approach to copyrighted works. Currently we live in a permissive society when it comes to such content. Newspapers can quote from works while songs and movies are widely referenced without fear of litigation. However, SOPA will lead towards an “ask-first” society where writers and other website owners will fear the reprisal from any perceived infringement. Additionally, pinning this new possible liability on websites could affect investment as investors typically do not like to put their money in entities that can be a “liability magnet.”
Finally, critics argue that because the method for taking down infringing sites, from the complaint to the actual removal of a site, would be highly invisible to most users, this lack of visibility will lead to a lack of understanding of how to comply with the law and harder to complain about abuses of the law.
While there is likely some good intention behind SOPA, as the theft of U.S. intellectual property is clearly an issue to be resolved, the method and wide scope of SOPA is a wrong and possibly dangerous approach to solving this problem. While it is difficult to stop infringement in other countries, SOPA puts the impetus of stopping the spread of infringement on the middle-men, the ISPs and other service entities, and will ultimately hurt consumers, making the internet less secure and less open.
We feel that this bill, as currently drafted, should not be passed by Congress. The internet is an open space and should continue to remain that way. While the entertainment industry wants to protect its property and revenue, this bill is the wrong way to do it and the industry would be advised rather to focus on creative and better delivery of its products that will engage consumers in ways that will continue to delivery the profits they seek.
Currently, SOPA is stalled in the House Judiciary Committee. President Obama recently came out in opposition of SOPA, however, contrary to some reports, this has not killed the bill completely. The bill will not go to a House vote until issues are resolved in the Judiciary Committee.
– Post written by Scott Brown, intellectual property attorney at The Gillespie Law Group.
– While the views expressed within are solely those of The Gillespie Law Group, we would like to extend a special thank you to Brad Griffith at Buckeye Interactive for his invaluable help with understanding the technical aspects of DNSSEC and deep packet inspection.