[NEohioPAL] SOPA analysis

[Mary Ellen Tomazic]

                            The Stop Online Piracy Act (SOPA) Uncovered

                           By Mary Ellen Tomazic



        Nobody likes pirates (except in the movies), whether they are on
the high seas or selling counterfeit goods on the streets. Recorded music
piracy was first stopped by an amendment to the Copyright law that took
effect in 1972 (17 U.S.C. §102(a) (7)), closing the loophole that left
sound recordings unprotected. The Copyright Act was loosened up in 1976 to
allow artists and other creators to obtain automatic copyright in their
original works of authorship without the technical requirement of placing a
copyright notice on each copy of their work, to prevent it from being
thrown into the public domain. Once digital media became more and more
omnipresent, it became necessary for lawmakers to keep up with the times
and craft amendments to the Copyright Law to protect artists, writers and
musicians from having their works taken and used by others without payment
or attribution.

        The 1998 Digital Millennium Copyright Act attempted to address many
of the concerns brought by the new technologies by identifying them and
applying the existing protections of the law to online transmissions and
storage of copyrighted material. The Act added new section 512, which
limited liability of online service providers for copyright infringement by
reason of such transmission or storage by the provider, with the proviso in
section 512(E) that presumes the authorization of the copyright holder in
making the material available online. If there is no such authorization,
the service provider must respond expeditiously to remove the material
claimed to be infringing upon notice from the copyright owner of his agent.
(§512(c) (3)).

        The 1988 Berne Convention Treaty put many of the protections in the
United States into the global arena. These changes made some “pirates” such
as Napster and Grokster, which facilitated the “sharing” of copyrighted
music online among millions of potential music buyers, go legitimate with
the establishment of music download sites. Under settlement agreements with
the music industry, Napster and others now make money selling the songs
they previously helped distribute free. But all this did not stop some
people from continuing to seek out ways to “share”, i.e. distribute and
sell copyrighted material such as music, movies and television shows over
the internet. These individuals and companies continue to prevent the
legitimate sale of works of artists and musicians through various “sharing”
programs despite the admonitions of the Copyright Law against such
distribution by anyone except the copyright holder. The Copyright law does
not allow the owner of a single copy of a copyrighted work to make copies
for sale or distribution (17 U.S.C. § 109), or to make derivative works
from that copy (17 U.S.C. § 106.) And despite the Berne Convention and
other treaties between the U.S. and many countries, many foreign sites
offer pirated copies of American music and films, through internet sites
with access to the United States market.

        Under the Stop Internet Piracy Act bill, or SOPA, these sites are
called “Notorious Foreign Infringing Sites” (§204) in the bill now making
its way through Congress. These “notorious” sites seem to be driving the
entire bill and its counterpart in the Senate (PIPA or Protect Intellectual
Property Act), using overly harsh, dragnet-type provisions which propose to
force internet sites to shut websites down which may facilitate access to
these foreign infringing sites which offer pirated material to U.S.
consumers through a link or other method. It is not clear how many “degrees
of separation” between the internet service providers or other entities
would be allowed for a shutdown of U.S. sites because of distant but
connected websites.

        Many of the notification and removal requirements in current
section §512 are duplicated in substance by SOPA, with the difference being
that the service providers are charged with the responsibility of removing
not only the infringing material, but of preventing access to “foreign
infringing sites” that are “U.S. directed sites used by users in the U.S.”,
even if only a link to such a site is available on the provider’s site. If
domestic U.S. entities such as search engines, payment sites and
advertisers fail to take action upon notice from the Attorney General of
access to a foreign infringing site within five days of notification, the
internet sites by such action would be subject to seizure, restraining
orders suspending its service, and other criminal sanctions and
fines(§102.) SOPA amends the federal criminal laws on copyright
infringement (18 U.S.C. §§ 2318, 2319, 2319A, 2319B, and 2320) to punish
service providers that facilitate a violation of the copyright (17 U.S.C.
§501 and §1201) or trademark laws (15 U.S.C. §1125, section 34(D) of the
Lanham Act). Even more disturbing are the provisions for a “market based
system” (section 103 of the Act) which allows “qualifying plaintiffs”, i.e.
individuals or companies which own copyrights to the materials which are
being infringed or counterfeited by foreign internet sites with U.S.
access, to send their own notifications and get court orders for their own
injunctions and shutdowns of provider sites. There is even a provision for
imposing an “appropriate monetary sanction” on entities that “foster” or
fail to restrict access to foreign infringing sites (§103(4) of SOPA) to
enforce compliance with the court’s orders. This would allow the big movie
corporations to enforce their copyright claims by sending their own notice
to service providers and going to court to obtain their own sanctions, and
not have to wait for the Attorney General to enforce the law.

        SOPA also would amend 17 U.S.C. § 506(a) to expand criminal
copyright infringement to performance by means of digital transmission or
reproduce or distribute phonograph records by digital transmission when the
total retail value of the recordings or public performances exceed $1000.
Making available works being prepared for commercial dissemination over a
computer network accessible to the public, such as movies after
distribution for theatrical viewing but before the movie is distributed to
television or by home viewing means such as streaming or DVDs, is given
harsher criminal sanctions. There are provisions in the bill that would
allow the affirmative defense that the defendant provider entity does not
have the technical means to comply with the law without incurring an
unreasonable economic burden, but such technical limitation on compliance
must be demonstrated. Also, the bill provides for some immunity for
entities that took action to comply with the law and restrict access to the
foreign infringing site but failed despite good faith efforts to effect
compliance. Immunity is also given to entities whose customers circumvented
any restriction or access to the foreign infringing site despite good faith
actions to comply with the order taken by the provider entity.

        Reaching back and shutting down many branches and sites on the
internet because of a limited number of offshore site is a radically
overbroad reaction to the problem of piracy. Private rights of action in
the bill are much more favorable to big media corporations than smaller
independent companies of artists, musicians and filmmakers, whose
livelihoods may be hurt much more by copyright infringement, and who may
not have the means to enforce the SOPA bill’s notification provisions and
seek court orders against the infringing sites. In addition, small artists
may be hurt because of the monetary limitations of the bill’s provisions
which require a certain level of retail value of the works in order to put
the copyright’s § 506 infringement provisions into play (SOPA §201.)

        The big Hollywood companies claimed in the 1980s that home
recording VCRs were a threat to the movie industry, but they turned out to
be a huge moneymaker for them. The rise of technology allowing the movie
companies to sell downloaded movies and the worldwide popularity of this
method of distribution has been a lucrative business for Hollywood. Recent
amendments to the Copyright law, such as the Artists’ Rights and Theft
Prevention Act of 2005 (18 U.S.C. §2319B and 17 U.S.C. §506(a)) which
strengthened criminal penalties for unauthorized recording and distribution
of motion pictures have helped them prevent infringement of their
intellectual property.

           The existing Copyright Laws with their global reach can be used
effectively to combat online piracy without the wholesale censorship from
the shutdown components of SOPA. Technology companies, which were not
consulted in the drafting of SOPA or PIPA, can assist in adjusting and
directing the existing copyright laws to squelch online piracy through
system solutions rather than court ordered injunctions and fines. They can
also suggest amendments to the copyright and trademark laws which will more
effectively pinpoint and target the copyright infringers and counterfeiters
wherever they are. SOPA and PIPA as currently written are too unreasonable
in their implantation and too draconian in their enforcement, and are not
needed in light of the battery of recently strengthened laws which can
effectively defend intellectual property rights abroad without them.

        Another alternative to SOPA and PIPA is set to be introduced by
Rep. Darrell Issa, R-California, the Online Protection and Enforcement
Digital Trade Act (OPEN), which would make the International Trade
Commission, rather than the Justice Department and the Attorney General,
responsible for policing U.S. connections to foreign infringing sites.
Taking this path rather than the path proposed by SOPA and PIPA would at
least put the focus on the direct punishment of criminal acts, instead of
the censoring of sites which may have some distant but innocent connection
to the criminal acts.