SOPA: Shooting a Mouse With A Cannon

Yes, I am IP lawyer with more years of  experience than is healthy to admit.

Yes, I agree that copyright owners should be compensated for the fruits of their creativity and innovation.

Yes, I think that the Stop On Line Piracy Act (“SOPA”) is a rotten idea. Born of estimable motives (see line 2 above), giving a perhaps unwarranted benefit of the doubt,  the proposed legislation essentially privatizes copyright enforcement by empowering anyone who thinks they have a copyright claim to undertake measures to block any site that contains any infringing material, regardless of its significance to the site.

The Electronic Frontier Foundation has stated the elements of SOPA succinctly:

Let’s make one thing clear from the get-go: despite all the talk about this bill being directed only toward “rogue” foreign sites, there is no question that it targets US companies as well. The bill sets up a system to punish sites allegedly “dedicated to the theft of US property.”  How do you get that label?  Doesn’t take much: Some portion of your site (even a single page) must 

  • be directed toward the US, and either
  • allegedly “engage in, enable or facilitate” infringement or
  • allegedly be taking or have taken steps to “avoid confirming a high probability” of infringement.

If an IP rightsholder (vaguely defined – could be Justin Bieber worried about his publicity rights) thinks you meet the criteria and that it is in some way harmed, it can send a notice claiming as much to the payment processors (Visa, Mastercard, Paypal etc.) and ad services you rely on.

Once they get it, they have 5 days to choke off your financial support.  Of course, the payment processors and ad networks won’t be able to fine-tune their response so that only the allegedly infringing portion of your site is affected, which means your whole site will be under assault.  And, it makes no difference that no judge has found you guilty of anything or that the DMCA safe harbors would shelter your conduct if the matter ever went to court.  Indeed, services that have been specifically found legal, like Rapidshare, could be economically strangled via SOPA. You can file a counter-notice, but you’ve only got 5 days to do it (good luck getting solid legal advice in time) and the payment processors and ad networks have no obligation to respect it in any event.  That’s because there are vigilante provisions that grant them immunity for choking off a site if they have a “reasonable belief” that some portion of the site enables infringement

You get the picture. The DMCA safe-harbor provisions would be a fond memory, since private rights claimers would go to the payment processors as well as the alleged offending sites themselves. The process builds in little or no incentive to fairly evaluate whether copyright infringement has actually occurred (fair use anyone?), which at least is a nominal feature of the DMCA currently. More importantly, SOPA enforcement would result in the filtering of entire sites, not just content on the sites that is claimed to infringe.

As Julie Ahrens, Associate Director of the Stanford Center for Internet and Society professor points out, SOPA:

1. Violates due process. Under SOPA, any private copyright or trademark owner can cut-off advertising and payments to any website by alleging that the operator “avoid[ed] confirming a high probability” that “a portion” of its site is being used to infringe copyrights. Advertisers and payment companies (e.g. Visa, Mastercard, and PayPal) are then required to stop doing business with that site. It seems likely that content owners (or people merely claiming to be content owners) will often succeed in shutting down websites without ever going to court. The proposed legislation also gives the Attorney General and the Justice Department the power to shut down websites before they are actually judged infringing. Courts will be able to order any Internet service provider to stop recognizing an accused site immediately upon application by the Attorney General, after an ex parte hearing. By failing to guarantee the challenged websites notice or an opportunity to be heard in court before their sites are shutdown, SOPA violates due process.

Read more:

http://www.scribd.com/doc/72807693/Law-Profs-Letter-Against-SOPA-PROTECT-IP

http://www.techdirt.com/articles/20111026/12130616523/protect-ip-renamed…

2. Censors lawful speech. As described above, the legislation allows any content provider or the Attorney General to accuse a website of promoting infringing content and have that site blocked from the Internet. The legislation’s vague standards for liability mean that the only way for Internet service providers and websites to avoid liability is to over-block content, including non-infringing speech. And by ordering Internet service providers to remove any offending domain name, it would require the suppression of all sub-domains associated with the domain– censoring thousands of individual websites with vast amounts of protected speech containing no infringing content.

Read more:

http://www.scribd.com/doc/72807693/Law-Profs-Letter-Against-SOPA-PROTECT-IP

http://arstechnica.com/tech-policy/news/2011/07/dozens-of-law-professors…
http://www.techdirt.com/articles/20111111/16242216727/first-amendment-ex…

3. Breaks the Internet’s infrastructure. By tampering with the Domain Name System (DNS), SOPA breaks Internet security and encourages the development of an insecure, offshore pirate DNS.

Read more:

http://www.shinkuro.com/PROTECT%20IP%20Technical%20Whitepaper%20Final.pdf

http://www.techdirt.com/articles/20110531/13331214491/why-protect-ip-bre…

4. Blows up the safe harbor. Under existing law, providers are shielded from liability for their users’ possible copyright infringement so long as they remove allegedly infringing material when they get complaints. SOPA turns this system upside down. Under SOPA, content owners can require advertisers and payment companies to stop doing business with any website that allegedly has any portion used to infringe copyrights or trademarks. Content owners will have the power to shut down websites without ever going to court.

Read more:

http://www.techdirt.com/articles/20111027/00083116531/e-parasites-bill-e…

http://www.publicknowledge.org/blog/house-version-rogue-websites-bill-ad…

https://www.eff.org/deeplinks/2011/10/sopa-hollywood-finally-gets-chance…

5. Kills innovation. By vastly increasing the risks associated with hosting user-generated content, SOPA will make it far more difficult to start new internet companies. If SOPA had been the law, it is doubtful that Facebook or YouTube would have been able to launch.

And, if you think the last point is an idle threat, consider this: countless innovators are threatened with losing funding if SOPA becomes law

Most particularly, creating “market remedies” to address legal concerns that, at least in the US, have been addressed, and more importantly, tested and accepted or rejected by Courts is a striking development.

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