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Stop Online Piracy Act (SOPA) – A series of tubes revisited?

Stop Online Piracy Act (SOPA) – A series of tubes revisited?

As the title may suggest, Congress often finds itself over its head in many technical matters, and internet usage is certainly no exception. The latest, and potentially most egregious example of this is SOPA, the Stop Online Piracy Act. As I will detail below, this bill is a travesty of law, in terms of both its legal and policy ramifications.Looking at the legal aspect of SOPA, my attention invariably turned to the potential First Amendment violation it entails. Section 103 of SOPA presents the potential for a violation of First Amendment rights. SOPA Sec. 103 allows a rights holder to notify providers (hosting, payment, and ad) of content it feels is infringing on its copyright. That provider then has 5 days to comply with the notification and take down the offending content. If the provider doesn’t comply, the rights holder can then go to the court and ask for injunctive relief, as well as relief from the provider. Meanwhile, the only notification the potentially infringing website receives (other than a notice from the court if the provider doesn’t comply) is from the provider, who must provide “timely” notice to the offender.However, if the provider acquiesces and pulls the potentially infringing content from the site before the court finds that there is an infringement, then that provider is immune from any relief the rights holder may request, as well as any suit by the potentially infringing party. This means that there is a very strong incentive for providers to pull the material, as it prevents them from potential lawsuit liability from the rights holder, and they are immune from any restitution to the potentially infringing party if that party is found (not to have infringed on copyrighted material. Given this, it is almost a certainty that providers will respond to any of these claims by taking down the content.The First Amendment protects free speech, which was determined to include the Internet (see Ashcroft v. Free Speech Coalition). A key to First Amendment protection is prior restraint, the idea that restraints on speech “without notice or judicial hearing violates” the First Amendment (see Nebraska Press Assn. v Stuart). This crucial protection is one of our most guarded constitutional guarantees  that private parties cannot restrict speech by another private party with notice or a chance to bring the case before the courts.SOPA, if not explicitly in text, then certainly in bare intent, flies in the face of the time-honored dictum of prior restraints on free speech being a violation of our First Amendment rights. It essentially guarantees that a provider will remove content upon notice by the rights holder, and that there is little chance the potentially infringing party would even be aware of it until after their content is removed. Then there is no recourse against the provider for the potentially infringing party, as Sec. 104 makes the provider immune to suit.

As many businesses and people can tell you, having your content ripped from the Internet can doom a business, and stifle expression by individuals who no longer have a key output for their expression. A potentially infringing party can file a counter-notification to the provider, but by then it’s content has likely already been pulled, and may not be re-instated by the provider until the potentially infringing party wins what could be a lengthy court case. The legislation isn’t explicit in requiring a provider to unblock or return service to a potentially infringing party, meaning that many providers might decide to keep the content blocked to avoid potential liability. This means that content (and payment or ads) can be taken offline, and possibly kept offline (as other providers would not host the content, payment, or ads, or would take it down upon notice just as the first provider did).

This is all before the potentially infringing party (who has now likely faced irreparable harm from having content, payment, or advertising pulled) is able to get in front of a court, in clear violation of the doctrine of prior restraint. Our Constitution was built on the premise of keeping government power out of private hands, yet SOPA gives a private rights holder the power to restrict free speech! This is compounded even more by the venue requirements, in that venue is anywhere an entity is located, meaning plaintiffs could make it extremely inconvenient for a defendant to show up to court dates. Additionally, a potentially infringing party isn’t even able to bring a suit against a provider to have their content hosted, as the provider is immune from suit after pulling their content.

In addition to these civil and economic issues, SOPA Sec. 201 provides for criminal charges for based on streaming or disseminating copyrighted material. The terms under which a criminal charge may be brought are understandably better detailed, but there is still some vagueness in the evidence required to show a willful distribution that is troubling. Sec. 201 says that evidence of distribution is not enough to show willful, but then leaves the question wide open.

While some degree of latitude is necessary, as intent is often shown in a case-specific manner, I worry about the ability of many courts to parse out intent in what could be a very technical case involving technology they may not fully grasp. There is an increasing amount of cloud-based hosting, and the prevalence of on-site ads could lead to a confusing situation for many courts given the definitions. Many ads are done either automatically (Godaddy.com, for instance, allows for a simple website creation that includes a link for Godaddy, which might be construed as advertising) or are site-wide (for instance, Google AdSense), and so something as innocuous as a sidebar advertisement from Google AdSense could lead to criminal liability.

Many of the issues involving enforcement of SOPA come from the vagueness of the language used in it, something the Digital Millenium Copyright Act tried to avoid so it didn’t face the issues now being presented by SOPA. Providers would likely be afraid of being liable under SOPA for enabling or facilitating, with no other explanation other than that this test can be met by merely “avoiding confirmation of infringement” (which I will talk about more when I look at the policy involved). Vagueness in statutes also violates the First Amendment under court construction, which requires any restraint on free speech to be “narrowly tailored”.

Another First Amendment violation comes by way of SOPA’s treatment of foreign content. References have been made to China’s internet restrictions (dubbed The Great Firewall of China), and they don’t seem far off. A rights holder can petition a provider to block content from a foreign source, if the source is “U.S. directed” and “is used by users in the U.S.”, or it can petition the Attorney General to take action against the site. Without notice or a judicial hearing beforehand, U.S. citizens can be deprived of the ability to view foreign content. Such foreign content has been held to be protected speech under the First Amendment (see Lamont v. Postmaster).

This means that the same ideas I gave above about prior restraint would also apply here as well. Expressive content would be restricted from publication before a judicial hearing was given to the potentially infringing party, and U.S. citizens could be prohibited from viewing protected foreign expression. Even in looking at attacking potentially infringing foreign content by the Department of Justice, there are concerns. The DOJ has a bad record of taking down sites that were not infringing while they cast a wide net to stop online piracy, both domestically and abroad.

Perhaps the more serious part of actions involving foreign content is that these actions can be taken in rem, meaning that a court action could be taken against a foreign potentially infringing party without them having any contacts in the U.S.. In turn, this would mean that the potentially infringing party, after having their content blocked by U.S. providers, would have to come to the U.S. for a potentially lengthy trial in order to vindicate their content rights. As disturbing as this is, SOPA gets more perturbing when it involves payment providers like Paypal, or advertisers like Google. If foreign sites are denied access to these payment providers, who generally follow best practices, how splintered could the online payment market get. If this happens, who will consumers trust to handle their online payments (it is common knowledge that the Internet is a breeding ground for scam artists) for domestic and foreign commerce?

It is these type of broad actions that doom SOPA from a policy standpoint. While it appears that there is a good chance that SOPA could lead to constitutional violations, SOPA’s hidden threat comes in a broader legal sense. The vagueness of the definitions and language in SOPA, as described above, allows for a great variance in what could be considered a SOPA violation. Additionally, the broad scope of SOPA’s take down notifications (allowing for the taking down of an entire domain or sub-domain for even a single page’s possible content infringement) leaves open the possibility of abuse.

This will likely leave providers (ISPs, as well as advertising and payment providers) very nervous, given the broad implications of a potential infringement (imagine Youtube or Facebook facing a domain-wide take down notice for a single page that potentially infringes on a copyright holder’s rights). And as worrisome as a take down notice could be for Youtube, there are a great many more sites that don’t have the reserves and clout of those larger sites, and would be unable to defend against a take down notice in court, especially given the ease of filing a take down notice, and that fact that a site could be faced with fighting a legal battle while their source of income, their web domain, in addition to their ability to get payment, have already been taken offline.

There is also the possibility of gamesmanship between competitors. Let’s use the recent Apple and Samsung suits as an example. Under SOPA, Apple could have filed notifications with a variety of ISPs, Paypal, Google, and other payment and advertising providers to shut down Samsung’s domain and ability to advertise and receive payment online. Samsung could file a counter-notification, but imagine the amount Samsung would lose, in addition to any long-term effects from the lack of advertising and online presence. Additionally, under SOPA’s vague guidelines, anyone covering or reviewing Samsung products could be liable (it could be argued that any press involving the potentially infringing products was aiding in the theft of U.S. property, even if just under the avoiding confirmation standard of SOPA). While this is an unlikely scenario, the fact that it is possible is horrendous from an economic policy standpoint.

Given the consequences of not complying with a take down notice, and the immunity given for compliance, there are few situations where a provider wouldn’t comply. And in seeking to make escape liability, companies may be causing incredible financial strain on America’s e-commerce market. When there is broad liability, such one-sided consequences, and vague standards, it can have a severe chilling effect on commerce. What company would take that risk? Additionally, there is the chilling effect on companies wanting to invest in e-commerce. How much would you invest in online resources in a competitive field, knowing that a notification, with nothing else, can completely divest you of your investment, without any way to ensure that your investment stays intact until you have a chance to vindicate your rights in court?

Additionally, where does SOPA’s “avoiding confirmation” take us? How does  large provider like Paypal, Comcast, or Google protect themselves from potential liability. All of these providers handle a staggering amount of traffic each day. This means that the solution will likely cost those providers a tremendous amount, thus leading to higher prices for both the providers and their downstream consumers.

Of a much greater concern, particularly to U.S. citizens’ privacy, is the technology that would be utilized by these companies in their attempt to avoid SOPA liability. Deep packet sniffing, and similar technologies are are very invasive. The idea that these technologies could be used, and the information held by private companies, where the possibility of leakage or misuse exists (just look at recent security breaches involving Sony and other companies that held customer payment information). How would you feel about every step of your online activity being scrutinized? As consumers, citizens, and voters, we must be concerned about legislation that will likely create price increases that will be used to infringe upon our privacy.

On the world economic and policy stage, SOPA makes American interests more vulnerable. After railing against restrictive internet security measures from other countries like Iran and China, SOPA now potentially leads the U.S. into dangerous similar territory. The U.S. could now, contrary to previous rhetoric, be limiting the foreign expression that is allowed into the country over the Internet. Even worse, this censorship can be by the hands of private individuals, without adequate government safeguards. How will other nations, the World Trade Organization, or other multinational agencies feel about U.S. competitors having the ability to block or remove advertising and payment options for world suppliers, retailers, and manufacturers?

Beyond the facts of SOPA, it’s likely that the bill wouldn’t help the stated purpose of stopping piracy. Even if a provider blocks a domain or stops servicing it, it is only a matter of hours before the pirate could have a new domain up and running. An in rem proceeding in the U.S. is of little concern to them, as they can quickly get a new domain to distribute their pirated content from. There is also the issue of how much collateral damage will be entailed with SOPA proceedings. Beyond the possibilities given above (granted that some of the scenarios I gave are unlikely, the point being that they are possible under the vagueness and lack of assurances under SOPA), the Department of Justice has a bad history of taking down non-infringing sites along with infringing sites. This includes foreign sites that have been found to not infringe copyrights in courts in their countries of origin. This is only compounded with the ability of private parties to bring causes of action to block foreign sites that may have a U.S. audience.

Needless to say, the supposed idea behind SOPA is a good one, to stop piracy. However, as the title suggests, Congress often finds itself falling short in terms of the technical knowledge required to properly implement many of the policy decisions it legislates. At best, this is the case in SOPA. SOPA is so concerning in that it potentially leads a deterioration of the e-commerce model, cloud based services and content hosting, world commercial activity and relations, First Amendment protections, and U.S. Citizens’ privacy. The vagueness, over-breadth, and lack of oversight in SOPA makes this bill the epitome of unmanageable, and likely unconstitutional, law.

Brought to you by Christopher Ackin of The Grand Rapids Law Group. Please visit our site for your criminal defense, family law (divorce and child custody), immigration, business law, and general practice needs.

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