by Vimal Kini & Jennifer Wang
On Wednesday, November 17 an entertainment industry-backed measure to “kill the Internet” comes up for review in the House of Representatives in the form of the Stop Online Piracy Act. The act claims to target only foreign copyright infringement but the broadness of the language ostensibly opens the door for copyright holders to target domestic Internet users. The Act’s guidelines for a “market-based system to protect U.S. Customers and prevent U.S. Funding of sites dedicated to theft of U.S. Property” entails a site falling under two vague measures to be considered in violation. First, the site would have to be directed towards the U.S., and secondly it must be “taking or have taken deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site” that is supposedly in violation, or “allegedly engages in, enables or facilitates infringement”. Internet Service Providers would become burdened with the responsibility of enforcing supposed infringement at the risk of being fined. Should an ISP suspect a site of meeting the criteria meted out by SOPA they are obligated to send notice to any of the suspected site’s payment processors and/or ad services the suspected site(s) rely on. Payment providers have five days to cut off funds to the allegedly infringing site. Although one can file counter-notice there’s only that window of five days to do so and payment providers aren’t obligated to abide by that. Further, should the accused seek to fight that claim, it is likely they will be at a great financial disadvantage, especially if their funds are cut off. Doesn’t all this sound familiar, Mr. Assange?
Who Likes SOPA?
For some parties, SOPA sounds like the end of the parade of copyright infringement cases such as MGM Studios, Inc. v. Grokster, Ltd. Instead ISPs such as Grokster can no longer hide behind the claim of not being responsible for how their services are being used since they are not in control of the content being transmitted through their platforms, nor do they have knowledge of such infringement due to the hands-off nature of their platform. In fact, the question of whether or not copyright has been violated would not get the due process of law. In other words the broad shield of protection that USC 230 provides would be eviscerated. ISPs would have to turn on their customers at the risk of being found liable for contributory infringement.
Although Grokster and StreamCast had originally argued that their services could be used for non-infringing purposes, similar sites who make the claim today would have to actively monitor and filter content to make sure such non-infringing content was the only content being passed around. All this works in favor of large entertainment corporations who have long fought technological advances, as is seen not only in MGM Studios, Inc. v. Grokster, Ltd. but also in the much earlier iteration of Sony Corp. of America v. Universal City Studios over the use of BetaMax players.
Chilling Effect on Free Speech
If SOPA passes to become a law, it would give governments and private corporations unprecedented amount of control over the Internet which has been the primary platform for free speech. Websites based on community driven and user generated content will be brought under acute scrutiny for the content hosted. There would be a flurry of copyright infringement claims and as result removal of websites by ISPs based on the flimsy justifications simply to avoid penalty. Websites like YouTube, blogs, social media would have a huge burden of monitoring their content in order to stay alive or they would simply not exist. As well as the first amendment disputes against SOPA, critics also cite studies which indicate a large percentage of actual copyright infringement is between families and friends not for commercial gain or from the “foreign” infringers the act supposedly targets. According to techdirt.com the Social Science Research Counsel has released a study on infringement amongst Americans. Amongst the facts it reveals, the study shows that people mostly infringe for noncommercial purposes and amongst their friends and family. It reflects characteristics of Sony v Universal Studios over Sony’s Betamax video tape recorder in which the courts found that copyright holders carried the burden of showing noncommercial uses are harmful and that if widespread would potentially affect the market.
Limiting Innovation in Tech and the Arts
SOPA essentially would force Internet service providers to play the role of copyright police. They will be required to remove copyright infringing websites if they have “reasonable belief” that some portion of the site enables infringement. There is no clear definition about how much data can be termed as ‘reasonable’. Thus it is highly likely that ISPs would rather prefer to take down content that is been claimed to be copyright infringement than be non-compliant to SOPA. There is no incentive for ISPs to spend the time and money to investigate the claim. Removing the website altogether, even if only parts of it contain infringing content, would be more cost effective.
While US courts have traditionally sought to maintain a balance between protecting the arts and encouraging technological innovation, these actions could have severe impacts on both these fields. Technologies like peer to peer file sharing which can have both lawful uses and infringing will probably not be supported by the ISPs and thus such innovations and developments will be hindered. In terms of the arts, it would greatly hinder creative collaboration over the Internet such as that which occurs on YouTube, Vimeo, blogs. Further it would cut into small businesses and start-ups who offer potentially infringing platforms to users.
Conclusion
As we learned from the Sony vs Universal Studios and Grokster vs MGM cases it one of the court’s primary goals to strike a balance between the respective values of supporting creative pursuits through copyright protection and promoting innovation in new communication technologies by limiting the incidence of liability for copyright infringement. SOPA clearly disrupts that balance by putting a ginormous burden on ISPs towards ensuring protection of copyright works. SOPA clearly shifts the burden of copyright protection from the holder to those who only provide platforms for user generated expression. It erodes safe harbor protections provided by the DMCA as well as those offered under section 230. The hearing on the Act also seems to be skewed heavily in favor of SOPA as critics have been denied a place at the table. If this act is passed into law, we will see a great change in the Internet as we know it.
Relevant Cases:
MGM V Grokster
Sony V Universal Studios
Sources:
http://judiciary.house.gov/hearings/pdf/112%20HR%203261.pdf
http://gigaom.com/2011/10/27/looks-like-congress-has-declared-war-on-the-internet/
https://www.eff.org/deeplinks/2011/10/sopa-hollywood-finally-gets-chance-break-internet