According to its opponents, it would mean the end of the Internet as we know it. Dire predictions circulating on the Web in recent weeks have included the scenario of Justin Bieber getting hauled off to jail over videos posted on YouTube and the U.S. Department of Justice shutting down the YouTube site.
At issue is the Stop Online Piracy Act, a bill aimed at curbing digital theft of copyrighted works that was introduced in the House on Oct. 26. But does the language of the legislation actually enable such drastic action as its opponents describe? Supporters of the bill say sites can’t be shut down without a court order, and the rules of civil and criminal procedure offer adequate protection to site owners.
Heated rhetoric over SOPA has quickly spread from social-media sites and e-mail to cable television. The Colbert Report on Dec. 1 featured a debate between music executive Danny Goldberg and Harvard Law School professor Jonathan Zittrain over the need for the legislation.
SOPA is billed as a new weapon against “rogue” foreign Web sites that infringe copyrights and sell counterfeit goods. Big media companies such as Viacom Inc. and industry trade groups such as the Motion Picture Association of America are in favor of it, arguing that it is needed to combat piracy overseas. At a Nov. 16 House Judiciary Committee hearing on the legislation, committee chairman Lamar Smith (R-Texas) said, “The problem of rogue Web sites is real, immediate and widespread. It harms all sectors of the economy.”
But a day before the hearing, nine Internet giants, including Facebook Inc., Google Inc. and Yahoo! Inc., claimed in a letter to the House Judiciary Committee that the bills would “seriously undermine the effective mechanism Congress enacted in the Digital Millennium Copyright Act (DMCA) to provide safe harbor for Internet companies that act in good faith to remove infringing content from their sites.”
Yahoo also reportedly canceled its U.S. Chamber of Commerce membership over the Chamber’s support for the bills.
The bill is scheduled for a mark-up in the House on Dec. 15.
SOPA’s Senate cousin, the Protect IP Act, passed the Senate Judiciary Committee last May, but Sen. Ron Wyden (D-Ore.) placed a hold on it. In a May 26 statement, Wyden said the Senate act takes an overreaching, instead of a balanced and targeted, approach to policing the Internet. “I am not willing to muzzle speech and stifle innovation and economic growth” to protect intellectual property and curb sales of counterfeit goods, Wyden said.
Legal debate about SOPA primarily centers on two provisions. One would give the U.S. attorney general the authority to seek a temporary restraining order, preliminary injunction or injunction against the owner of a foreign-based Web site that infringes intellectual property. With the court order, the government could require intermediaries such as domestic Internet service providers, search engines, payment processors and ad networks to stop providing service or to take certain action against the Web site within five days.
Another provision would allow a rights owner to send an infringement notification that instructs payment and ad networks to stop doing business with a site “dedicated to the theft of U.S. property” within five days of a copyright owners’ allegation that the site infringes.
If those intermediaries do not take action, or the accused site informs the service providers that it’s not infringing, the copyright owner can seek court action against the site or a domain-name registrant. The court order could then stop financial and advertising companies from doing business with the accused site in as soon as five days.
Some attorneys worry that provisions directed toward service providers and financial payment processors give the government and copyright owners too much power.
“I’m very concerned about the potential for abuse by the government and by private parties,” said Andrew Bridges, a San Francisco partner at Fenwick & West who has defended cases brought by the entertainment industry.
Others say the federal rules of civil and criminal procedure protect law-abiding companies from overzealous enforcement and that Internet companies shouldn’t get special treatment.
First Amendment lawyer Floyd Abrams, a partner at New York’s Cahill Gordon & Reindel, believes that much of the opposition to the bills stems from “the false notion that the Internet is some sort of law-free zone” or that enforcing the copyright law with respect to the Internet would be constitutionally intolerable. “I think you can have a free Internet at the same time you have one that plays by the rules that govern all media,” Abrams said.
Abrams jumped into the fray with a Nov. 7 letter to the House Judiciary Committee in support of the bill, on behalf of several theater, television and radio association clients such as the Screen Actors Guild.
One controversial provision of the statute “creates complete immunity” for payment processors that cut off any site if they have a reasonable belief it’s a foreign infringing site or is dedicated to the theft of U.S. property, said professor Edward Lee, director of the program in intellectual property law at Chicago-Kent College of Law. “This immunity for the voluntary actions could encourage risk-averse companies to undertake some of these actions on their own, without corroboration or a court order,” Lee said.
Financial and ad service providers could also be subject to pressure from powerful copyright owners to stop doing business with an accused site, even if it sends a counternotice that it’s not infringing, Lee said. “The danger in encouraging these Internet services to do this kind of policing on their own and granting them immunity is rife with the possibility of error and collateral damage and the erroneous shutting down of services,” Lee said. “The bottom line is there needs to be greater safeguards built in all throughout SOPA.”
“Super, superbroad” laws are a real danger, because they’re not always applied responsibly, Bridges said. He cited a recent request by 13 record companies for $75 trillion in damages against defunct file-sharing service LimeWire in a Southern District of New York copyright infringement case in March. The damages request was so high because the Copyright Act allows up to $150,000 for each infringed work when there’s willful infringement.
Judge Kimba Wood called the request “absurd,” and the parties settled for $105 million in May.
“Are these the people you want to be trusted with newly expansive powers?” Bridges said. “Thank God the judge pushed back.”
If there needs to be a trial, a verdict and a ruling before the government takes action, “that kind of ignores the immediacy and the widespread networked harm that comes from the Internet,” said Chris Castle of Los Angeles-based Christian L. Castle, Attorneys. He represents artists, producers, songwriters, record labels, music publishers, film studios and technology companies. “To me, it’s a question of someone has to bear the burden here.”
Castle also emphasized that SOPA requires private copyright holders to get a court order to stop payment processing or ad services if the involved Web site owner sends a counternotification to those intermediaries that the site is legitimate.
He noted that the Federal Rule of Civil Procedure governing injunctions and restraining orders gives a Web site owner the opportunity to appeal within two days. “If you have a problem with the way the rogue-sites legislation in both bodies are drafted, what you really have a problem with is [Rule] 65 [about injunctions and restraining orders],” Castle said.
Neither SOPA nor Protect IP authorizes an automatic shutdown of anything, said Hillel Parness, a New York intellectual property and litigation partner at Minneapolis-based Robins, Kaplan, Miller & Ciresi who teaches Internet law as a Columbia Law School adjunct professor. “When I look at the statutes, I don’t see any kind of automatic takings, whether it’s by the government or private individuals. I see a federal judge who is in between that,” Parness said.
But SOPA’s real risk may be the broad way it defines an offending Web site.
Ambiguity in SOPA’s definition of an “Internet site dedicated to theft of U.S. property” could cause Internet companies to change how they deal with user content, said Jenevieve Maerker, an intellectual property associate at Boston’s Foley Hoag.
Many people read the bill’s definition of such a Web site — a site, or a portion of one, that is directed to the United States and takes certain infringing actions — as undermining the Digital Millennium Copyright Act’s safe harbor, Maerker said. That safe harbor enables companies to allow individual users to freely make postings that are subject to later removal for infringing or harmful content.
Maerker said she’s not sure the bill’s definition means one user posting makes an entire Web site “dedicated to theft,” but disagreement and confusion about the language could influence corporate policies. “I do see that there’s ambiguity and that ambiguity could create a chilling effect,” Maerker said.
On Dec. 8, as reported in The Hill, Wyden, along with House Oversight Committee Chairman Darrell Issa (R-Calif.), introduced an alternate version of the bill. It would authorize the International Trade Commission rather than the Justice Department to police infringing Web sites. And it would target only payment processors, online advertising networks and other sources of revenue for these sites. The new version is intended to address some of the most controversial provisions of SOPA, and almost immediately, the Motion Picture Association of America denounced it as too lenient.
Sheri Qualters can be contacted at email@example.com.