Online Piracy Legislation –

A Cure Worse than the Disease?

 

By Jack C. Schecter, a member of our Litigation Practice Group

 

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t this point, even the most unplugged among us are tuned in to the controversy surrounding Congress’s latest attempts to protect intellectual property on the Internet.  The Stop Online Piracy Act (“SOPA”) in the House of Representatives, and the Protect Intellectual Property Act (“PIPA”), its lower-profile sister legislation in the Senate, have generated a flood of media coverage and protest actions. 

Though many recognize that online piracy of intellectual property is a festering problem, SOPA’s opponents have painted the proposed legislation as a treatment that risks killing the patient.  So fierce is the opposition that on January 18-19, Wikipedia – a pillar of the World Wide Web – made a marked departure from its policy of positional neutrality and instituted a 24-hour blackout in protest. Other powerful SOPA opponents--Google, eBay, Yahoo, Twitter, and Facebook-- joined in an open letter to Congress protesting the pending legislation.

So what about SOPA has its opponents so riled up?  We’ll take a look at the latest version of the proposed legislation and highlight some of the details that have made it a lightning rod for criticism.

What is SOPA?

Lamar Smith (R-TX) introduced SOPA in the House as H.R. 3261 on October 26, 2011.  Following blistering criticism of the bill as originally drafted, Mr. Smith soon offered an amendment replacing the text of the original bill.

In its introductory statement, SOPA is said “to promote prosperity, creativity, entrepreneurship, and innovation by combating the theft of U.S. property.”

Of course, an existing law, namely, the 1998 Digital Millennium Copyright Act (“DMCA”), provides for the protection of intellectual property from on-line piracy.  But the DMCA does little to protect rights-holders from infringement by foreign-owned and -operated websites.

SOPA and PIPA were introduced to fill that gap.  While the 70-plus pages of SOPA contain other important provisions, the heart of the bill—and of the controversy-- lies in Sections 102 and 103.

Under Section 102, the Attorney General is authorized to bring an action against a “foreign infringing site,” defined as a foreign web site “directed” toward users in the U.S. and operated in a manner that would subject it to prosecution for copyright infringement if it were a domestic company.

The Attorney General can seek a court order requiring (1) ISPs to prevent their subscribers from accessing “foreign infringing sites;” (2) search engines to stop providing the domain name of the “foreign infringing site” in response to a query; (3) “Payment Network Providers” (PayPal, for example) to stop completing payment transactions related to the “foreign infringing site,” and (4) “Internet Advertising Services” to stop providing ads for “foreign infringing sites” and to stop providing or receiving any compensation to or from those sites.

Section 103 of SOPA is similar to § 102, except that it authorizes private rights of action for any plaintiff with standing to bring a civil action against an “Internet site dedicated to theft of U.S. property,” although the relief it allows is limited to that in §102 regarding “Payment Network Providers” and “Internet Advertising Services.”

What’s the Problem?

The December amendment to SOPA did little to quell the criticism. The attacks come in three basic flavors:  philosophical, technical and procedural.

On a philosophical level, many see SOPA as a grievous breach of longstanding U.S. support of a free and open Internet.  One of the enduring critiques is that the legislation would result in “blacklist” orders which would lead to a balkanized Internet.  According to critics like the Electronic Frontier Foundation, under §§ 102 and 103, the government and rights-holders would create “blacklists” of foreign websites.  Once placed on the “blacklist,” allegedly infringing content – and perhaps entire websites – would essentially be placed off-limits to U.S. residents.

Moreover, because the legislation offers broad immunity (see § 105) for “good faith” actions taken in furtherance of the purposes of the legislation, critics argue it will create an overwhelming incentive for ISPs, search engines, payment network providers and advertising services to engage in active self-censorship. A fear of overreaching and censorship under SOPA is exacerbated by what critics see as its vague and ambiguous definitions of key terms, such as what it means for a website to be “dedicated” to infringement.

Technical concerns likewise animate the protesters.  Although the amended SOPA permits ISPs latitude in finding the “least burdensome, technically feasible, and reasonable means” to prevent their subscribers from accessing foreign infringing sites, it offers a safe harbor for ISPs that implement DNS-blocking schemes designed to prevent the domain name of a foreign infringing site from resolving to its proper IP address (the long string of numbers which lies behind the domain name).

DNS-blocking could seriously degrade Internet service. It would certainly cause delay because each time a user tries to access a website, a DNS-blocking system would require determining whether the user was located in the U.S. and, if so, whether the requested website was on the list of prohibited addresses. Worse than delay, from a security perspective, the creation of a DNS-blocking scheme would create myriad new possibilities for attacking online assets through unauthorized access and tampering with this newly created “blacklist.”

For procedural reasons as well, SOPA has come under fire as the handiwork of Congressmen sorely lacking in input from Internet companies and technical experts.  For example, none of the six witnesses invited to an important hearing before the House Judiciary Committee in November possessed technical expertise in Internet architecture and cyber-security.  Overall, critics have railed against what they see as a legislative process stacked in favor of SOPA, in no small part due to the significant lobbying money from the cable, movie, and music industries, as well as manufacturers who rely heavily on their trademarks.

Current Status 

The protests against SOPA and PIPA have been remarkably effective. 

Despite the array of interests backing the legislation, both bills were recently put on ice.  On January 16, responding to a petition against SOPA, the White House issued an official statement opposing SOPA in its current form.  Days later, both the House and Senate announced that they would postpone consideration of SOPA and PIPA indefinitely until there is wider agreement on an acceptable approach. 

No one should think that the fight over anti-piracy legislation is finished or that much time will pass before SOPA and PIPA reemerge in a new guise.  We’ll continue to track these developments.