As a journalist who has watched circulation of newspapers collapse over the last 10 years, I initially thought that the Stop Online Piracy Act (SOPA) might be a wonderful thing for print media companies. Alas, after reading the bill, I now know it has nothing to do with print media companies, per se, and is not about to save The New York Times from its circulation problems due to competition from the web. SOPA was mainly designed by the big content producers in Hollywood, and their record label spin-offs, as everyone interested in the subject knows by now. I spoke to a few lawyers in-the-know about where SOPA goes from here, following massive protest against its passing; and what, if anything, is good about it. Here’s what they had to say.
“If this law was enacted years ago, a guy like Justin Beiber would go to a federal prison for five years because he was singing unauthorized versions of Michael Jackson songs posted on websites around the world,” says Andrew Bridges, a lawyer at Fenwick and West in San Francisco. He had just flown in from Washington DC talking about SOPA to a variety of government employees after spending time last week talking to White House employees about the bill.
Of course, Justin Beiber is not going to jail for singing Jackson covers, and YouTube in China is not going to go black because of it. Beiber has only come out against the illegality of streaming copyrighted works under SOPA. The bill right now stands in limbo.
The Hill reported that House Judiciary Committee Chairman Lamar Smith (R-Texas) saying on Fridaywas postponing bringing SOPA to a vote and would have to retool parts of the bill. “I have heard from the critics and I take seriously their concerns regarding proposed legislation to address the problem of online piracy,” Smith said. “It is clear that we need to revisit the approach on how best to address the problem of foreign thieves that steal and sell American inventions and products.”
But is SOPA truly DOA, dead on arrival, when it reaches Congress? “It’s too soon to tell,” says Bridges who has litigated opposite the motion picture industry. “I think that Hollywood is embarrassed at having been called out on such a poorly intentioned set of laws and I expect to see them pull out all the stops to ram this through. These guys have an army of lawyers who do not fool around. They have tried to ban MP3 players, Blockbuster, Netflix.Piracy is a problem, but how big of a problem is it? Is it equivalent to murder or is it more like graffiti? You can eliminate shoplifting by making sure everyone goes through a strip search whenever they leave the store, but society doesn’t want to be put through that. That’s SOPA. There are already adequate anti-piracy laws on the books. We don’t need this one.”
The bill’s authors, and even President Barack Obama, think we do.
SOPA is different from current copyright infringement laws, like the Digital Millennium Copyright Act (DMCA), because it allows U.S. judges to shut down and/or fine foreign-based websites that are intentionally distributing and promoting copyrighted material. They don’t have to be making a profit off that material, they just have to be distributing it, or even linking to it.
The White House’s position is that foreign-based piracy is a serious problem harming American interests and existing laws are inadequate to address the problem. SOPA would allow for provisions that require advertising networks, payment processors like PayPal and the credit card companies and search engines to take action against sites hosting infringed material. They could be held liable. The concerns are over making sure the legislation is tailored to do what it is supposed to do, without unintended consequences in the nature of improper censorship, increasing security risks, or throttling legitimate innovation, says Hillel Parness, an intellectual property rights lawyer at Robins, Kaplan, Miller & Ciresi in New York.
“People are convinced that Obama is going to veto this bill, but he has never said that. The White House may be laying political cover so when they actually do support it, they are supporting a bill that does not harm the robust marketplace for legitimate intermediary internet services,” Parness says, filing through the 71 page SOPA document as he explains how it works after being revised in December.
Two people can bring a lawsuit against an infringing site. A public person, mainly a corporation, or an Attorney General. Both have to satisfy that the site is foreign and is impacting U.S. corporate interests. If the Attorney General indicts a foreign site entering the U.S., he can bring a lawsuit against that site, not against the search engine where the site can be found. A judge can then issue a temporary restraining order on the website, or a portion of the site hosting infringing material. The judge has a lot of discretion as to how strong the order will be, including how it will go after intermediaries like credit card companies, search engines and advertisers.
The private right to action requires a company to convince a judge that a foreign site is infringing upon its copyright and intellectual property. If the judge agrees, the company can take civil action against the infringing foreign site. It also means a company like SOPA-supporter Rupert Murdoch’s News Corp (NWS) could serve the order to MasterCard and Doubleclick for working with the site, but he cannot go after the search engines. The government, however, can.
“If a foreign website is proven to be a host for pirated 20th Century Fox films on a regular basis, it could find itself in very big trouble,” Parness says. “Murdoch would have the legal rights to go after advertising networks that run the banner ads. He could serve them with the court order to stop advertising on that site and he could do the same for Visa. But the way I interpret the law, and all of this is open to a court interpretation, Murdoch cannot go after the search engines. An Attorney General can. And that would require Google to spend a lot of time on a technological fix making sure that site doesn’t appear on its search engine.”
