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Controversy Surrounds Stop Online Piracy Act as Mark-Up Approaches
Posted On November 28, 2011
On Oct. 26, 2011, the Stop Online Piracy Act (SOPA; H.R. 3261) was introduced in the U.S. House of Representatives. A companion bill to the previously introduced PROTECT-IP Act, SOPA would give both government officials and content owners new authority to go after “rogue websites” that traffic in infringing, pirated, and counterfeit intellectual property. In the month since the act has been introduced, a groundswell of controversy has enveloped the proposal with competing claims that could lead to a “copyright police state”, or that, if it doesn’t pass, the “U.S. copyright system will ultimately fail.”

Both SOPA and PROTECT-IP (S. 968, introduced in the U.S. Senate earlier this year) are intended to address the very real problems of digital piracy, use of the internet to disseminate illegal and potentially dangerous items such as counterfeit prescription drugs, and the “rogue websites” that traffic in these illegal and infringing activities. At a Nov. 16 hearing conducted by the House Judiciary Committee, Chairman Lamar Smith (R-Texas) indicated that intellectual property theft costs the economy more than “$100 billion annually and results in the loss of thousands of American jobs.” Surveys have indicated that as much as one-quarter of internet traffic infringes on copyrights.

The problem is that much of the traffic and many of these “rogue websites”—websites that exist only to traffic in infringing, pirated, and/or counterfeit material—are foreign based and outside the scope of existing U.S. law. The 1998 Digital Millennium Copyright Act (DMCA) and the Copyright Act of 1976 are the primary U.S. laws that address copyright infringement, but both have limited utility to address foreign based websites.

SOPA responds to those limits by giving both government officials and content owners new powers to target rogue websites and infringers through the search engines, web hosts and ISPs, and payment systems providers that allow them to reach into the U.S. market. The bill would also strengthen existing criminal penalties, and add additional penalties for certain digital transmissions.

SOPA would give the U.S. government, primarily through the Justice Department, the power to bring legal actions and obtain injunctions against domain name registrations, website owners, and against the domain name itself. If a court injunction to shut down a domain is obtained, they can require service providers to block access to the site, search engines to cut off the sites from their search results, payment systems to stop processing payments to/from the site, and online advertising services to stop providing advertising to the site.

More controversially, SOPA would also give content and copyright owners the power to issue take-down notices to payment system providers and internet advertising services that support websites with infringing content. The DMCA already provides content owners the ability to send a take-down notice to a domestic web service or ISP that is hosting infringing content. SOPA would expand that capability to cover the intermediary services that support both domestic and non-domestic websites. SOPA also provides immunity to ISPs, advertising and payment processing providers and other intermediaries who take independent action against websites that are “dedicated to the theft of U.S. property,” and sites that “endanger public health.”

SOPA would enhance existing criminal penalties for copyright infringement, and adds a new criminal penalty for unauthorized “public performance by means of digital transmission” of a copyrighted work with a value of more than $1,000.

Notwithstanding a muted initial reaction, opposition to SOPA developed rapidly and very vocally. Users’ rights groups strongly criticized provisions that allow interference with the global Domain Name System (DNS). They argue that it could create a “blacklist” of websites based on only the suspicion of piracy or copyright theft. Public Knowledge, a users rights advocacy group, argued that “by creating conflicts between ‘DNS’ services, (SOPA) would make (users) more vulnerable to hackers, identity theft, and cyberattacks.” They also raised that specter that opening the door to government interference with the internet in the name of intellectual property protection could lead to government censorship of content. Other critics suggested the act could restrict innovation and development of online features, such as the cloud, as ISPs and intermediaries would face “new and open-ended obligations to monitor and police user behavior.” Several commentators bemoaned the absence of any recognition of fair use.

The new criminal penalties are clearly intended to target rogue websites that illegally stream mainstream movies, TV shows, and music. However, questions have been raised as to whether posting a YouTube video of a “cover” performance of a popular song would trigger the penalty. One opposition website argued that pop singer Justin Bieber, who was “discovered” on the basis of YouTube videos of him as a 12 year-old singing “covers” of pop songs, could conceivably be committing a crime for his “unauthorized public performance” of a copyrighted work.

The controversies continued at the Nov. 16 hearing. Six witnesses were invited to testify, of which five were on record as being in favor of SOPA, and only one—a representative from Google—was opposed. Critics complained that the committee had “stacked the deck” in favor of SOPA. In response, supporters noted that SOPA had broad bipartisan support, which was reflected by the witness list. Smith added to the controversy by attacking the only opposing witness, saying that Google profited from rogue websites and sought to obstruct the legislation. Maria Pallante, the newly appointed Register of Copyrights, raised some eyebrows with her strong support of SOPA. Her lack of balance between the rights of copyright owners and copyright users was seen by some as “disappointing.”

Since the hearing, objections continue to build. Letters objecting to SOPA have been submitted by a coalition of tech industry heavyweights including AOL, Facebook, Twitter, and Google, by a group of more than 100 law professors, and by a growing number of “silicon valley” lawmakers. Of course, the proposal has its advocates as well, including the U.S. Chamber of Commerce, content advocates such as the MPAA and RIAA, the AFL-CIO, and the Business Software Alliance. 

The bill is scheduled for mark-up on Dec. 15. Recently, Rep. Smith has indicated that he is “open to changes, but only legitimate changes,” in the bill. But, as the controversy as well as opposition to the bill continues to grow, the mark-up session could be rather lively.

George H. Pike is the director of the Pritzker Legal Research Center and a senior lecturer at the Northwestern University School of Law. Previously, Pike was director of the Law Library at the University of Pittsburgh School of Law, and held professional positions at the Lewis and Clark Law School and at the University of Idaho School of Law, and was a practicing attorney in Idaho Falls, Idaho. Pike received his B.A. from the College of Idaho, his law degree from the University of Idaho, and his M.L.S. from the University of Washington. He is a member of the American and Idaho State Bar Associations, the American Association of Law Libraries, and the American Intellectual Property Lawyers Association.

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Comments Add A Comment
Posted By Isaac Morrison11/28/2011 1:14:25 PM

Actually, I believe the Business Software Alliance dropped their support of SOPA last week.

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