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