Is SOPA Really That Bad?
(as published in Inside Counsel)
What This Means to You
- With some tweaks, the Stop Online Piracy Act (SOPA) could effectively combat piracy while providing protection to IP owners.
- The most provocative portion of SOPA—allowing any company complaining of a website using its intellectual property without permission to effectively shut down the website—is probably not practical as no judge would shut down a large site such as eBay for a single infringement.
Two weeks ago we experienced a moment of Internet history. On Jan. 18, dubbed “Blackout Day,” Internet giants such as Google, Reddit and Wikipedia acted in protest in an attempt to show how overreaching the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) are by censoring themselves for a day.
The coordinated action was intended to raise the profile of the debate to those outside of the tight-knit technology community. In fact, prior to the blackout, few people outside of the technology sector had heard of SOPA or PIPA. Following the protest, Wikipedia reported that its site had been viewed 162 million times, with 8 million people following instructions to contact politicians. Google reported that almost 5 million of its visitors used its site to contact politicians.
If made law, these bills would expand the ability of U.S. law enforcement and copyright holders to fight online trafficking in copyrighted intellectual property and counterfeit goods. The proposed bills aim to crack down on copyright infringement by restricting access to sites that host or facilitate the trading of pirated content.
Digging into SOPA
As proposed, SOPA would allow the U.S. Department of Justice, as well as copyright holders, to seek court orders against websites accused of enabling or facilitating copyright infringement. The subsequent court order could include barring online advertising networks and payment facilitators from doing business with the allegedly infringing website, barring search engines from linking to such sites and requiring Internet service providers to block access to such sites. SOPA also would make unauthorized streaming of copyrighted content a crime, carrying a maximum penalty of five years in prison (for 10 infringements within a six-month span). SOPA also would give immunity to Internet services that voluntarily take action against websites dedicated to infringement, and it would create liability for copyright holders who knowingly misrepresent that a website is dedicated to infringement.
SOPA’s main targets are “rogue” overseas sites such as The Pirate Bay, which is a trove for illegal downloads. Users can visit www.piratebay.org, type in any current hit movie or TV show, and immediately see links to download full seasons and recent episodes for free. While content creators have battled against piracy for years, it has been difficult for U.S. companies to take action against foreign sites. SOPA, however, would enable domestic companies to fight foreign piracy by requiring U.S. search engines, advertising networks and other providers to withhold their services from infringers. That means sites such as Google wouldn’t show flagged sites in their search results, and payment processors such as eBay’s PayPal would not transmit funds to them.
SOPA would essentially enable intellectual property owners (e.g., movie studios and record labels) to effectively pull the plug on foreign sites against whom they have a copyright claim. For example, Warner Bros. could demand that Google remove a site in Germany offering a copy of “The Hangover” from its search results and demand that PayPal no longer accept payments to or from that site. Furthermore, the company could demand that ad services pull all ads and finances associated with that site, and—most controversially—that the site’s ISP prevent people from even going there.
SOPA in the Media
The press has focused its attention on opponents of SOPA, who claim that the legislation violates the First Amendment, threatens free speech and is nothing short of censorship. Opponents, who have warned that SOPA would have a negative impact on online communities, have initiated a number of protest actions, including petition drives, boycotts of companies that support the legislation and planned service blackouts like the one staged by Wikipedia. They claim that making companies liable for users’ actions could have a chilling effect on user-generated sites such as YouTube. They also cite concerns regarding the impact on common Internet functions such as linking or access data from the cloud. Opponents claim that enacting SOPA could have a ripple effect that could lead to many cloud-computing and Web-hosting services to move out of the U.S. to avoid lawsuits, and that venture capitalists could, in turn, siphon funding to online startups.
The tech industry has argued that the bills are too broad, threaten free speech, stifle innovation and most likely will not even effectively eliminate piracy. However, it is unclear that these are real possible repressions of SOPA. The reality is that presently there are very few tools to combat online infringement, particularly coming from outside the U.S.
All agree that fighting online piracy is important. The real question is the most effective way to combat piracy while providing protection to the intellectual property owners. Infringement on the Internet is rampant, and the money made by those illegal activities harms both the owners and the economy.
It seems that the most provocative portion of SOPA is the provision which would allow any company complaining of a website using its intellectual property without its permission to get an order from a judge that effectively shuts down the website (which could be the host). However, the belief that a judge would shut down eBay for a single infringement is probably not practical.
SOPA was proposed to provide a mechanism to go after habitual offenders and conduit websites that permit or enable IP to be stolen. A bill like SOPA could provide important safeguards for legitimate IP owners. It seems that some modifications to the bill could be helpful to mitigate fears of the broad language, but opponents should take heed to ensure that their protests do not squelch the concept of stopping rogue websites that harm innovation.