It’s fair to say that cool heads did not entirely prevail in the entertainment industry’s war with Silicon Valley over new legislation aimed at curbing foreign online piracy. Terms like “rogue websites,” “end of the internet,” and “the Great Firewall” are only a sampling of the high-octane rhetoric that colored the public discussion of “SOPA,” the Stop Online Piracy Act, and its Senate analog, the PROTECT IP Act, or “PIPA.”
Critics charged that the SOPA/PIPA regime would enable arbitrary censorship, impose an enormous burden on tech firms, and would be ineffective against the more swashbuckling of web ‘pirates’. On the other hand, content owners argued that the hemorrhage of profits would not abate without the ability to block or de-fund foreign ‘pirate’ sites.
The unanticipated attention to SOPA was no accident – its opponents are uniquely positioned to amplify a message. As Reddit, Google, Wikipedia, and perhaps most critically the “Cheezburger” network (famous for hilarious pictures of cats) assembled a “blackout” protest, it appeared that the content industry had been taken a bit by surprise at the ability of web firms to ignite buzz over regulation of the Internet.
The groundswell provoked a rapid response in Washington, where SOPA and PIPA both look (for now) to be shelved. SOPA sponsor Lamar Smith (R-TX) had already significantly amended SOPA and had more recently agreed to remove contentious provisions that enable blocking of websites at the DNS level. When the White House waded into the discussion, indicating its own dissatisfaction with the bill, it was only a few days before leadership in both houses announced that SOPA and PIPA deliberation would be postponed indefinitely.
SOPA and PIPA may be down for the count, but Congress’ resolve to serve the content industry new IP legislation should not be underestimated. And the industry’s affection for SOPA/PIPA means that those ideas are likely to return in form even if not in name, and that the SOPA war will remain relevant to evaluating Congress’ inevitable future efforts at reigning in online piracy.
The SOPA solution, nutshelled
The most recent version of SOPA essentially targeted foreign websites that would ordinarily escape U.S. jurisdiction by compelling U.S.-based ISPs, search engines, ad networks, and payment processors to terminate service to the targeted foreign sites. The bill would have created two causes of action – one under the Attorney General and one for private content owners. The Attorney General could seek a court order immediately, but a content owner would first have to serve notice on the business affiliates of the target site, who in turn would serve notice on the allegedly offending site and suspend transacting with the site unless the site were to provide a counter-notification justifying its activity.
Justice Department actions under SOPA would have required a showing that the targeted site was a “foreign infringing site,” which the bill defined essentially as any site that violates the anti-circumvention provisions of the DMCA. In the case of a content owner action, the targeted site must be “dedicated to the theft of U.S. property,” which the bill defined as sites primarily used for offering infringing goods or services; sites with only “limited purpose or use” other than for infringement; and sites marketed for their infringing use.
Whether initiated by the Justice Department or by a content rights owner, the remedies could include court ordered de-funding of the ‘pirate’ site, removal from search engine results, or site-blocking (rendering the site invisible from within the U.S.). SOPA’s site-blocking provisions have prompted perhaps the most vociferous opposition – but, as the next section shows, by no means exhausted the list of SOPA’s would-be transgressions.
Perspectives on the SOPA regime
Supporters of SOPA argued that the bill would create no substantive changes in the law, but merely enhance enforcement of the existing U.S. copyright regime. But SOPA’s opponents saw much more than a tweak in enforcement – they saw a complete reordering of the web.
According to Harvard law professor Laurence Tribe, the bill would harm due process and permit an unconstitutional prior restraint on speech, producing a “chilling effect” that could “deter Internet companies from adopting innovative approaches to hosting and linking to third party content and from exploring new kinds of communication.” But the bill’s supporters stressed that injunctions under SOPA would be subject to the same procedural requirements as any restraining order, and that infringing speech is not protected.
For their part, content industry spokesmen urged that the ability to quickly block foreign pirate sites was essential to their ability to deal with a surge of off-shore pirate sites, many of which have taken the form of ad-sponsored ‘cyberlockers’. As one source, who wished to remain anonymous, stated, “any solution that doesn’t work fast enough to block access to the content while [the content] is still ‘hot’ . . . isn’t a solution.”
But web companies protested at what they perceived as an unfair burden in complying with a new regime of notices and orders. Internet Service Providers also argued that in order to effectively block only the offending portions of sites would require “deep packet inspection,” a costly process that could also violate user privacy. Even Comcast, a firm SOPA supporter, voiced concerns about the practicability of compliance.
Enforcement of SOPA raised not only free speech and practicability concerns, but caused many in the public sector and the tech sector to question whether SOPA could be implemented without undermining global network security. The White House jumped onboard with similar concerns, and one could argue that the security ramifications of SOPA/PIPA are ultimately what grounded the bills.
Perhaps what infuriated the information technology industry the most was the insult of being excluded from the process in Washington. According to Larry Downes, influential tech business consultant and author, “the process [of SOPA’s drafting and debating] is the most troubling part. It was written by the content industry with no input from technology. They thought they could just jam it through without even negotiating. And now there has been a grassroots revolt online, and they’re at a loss for what to do.”
Now what?
Now that SOPA and PIPA have withered on the vine and presidential politics are poised to dominate policy discussion for the foreseeable future, the public focus on addressing online piracy is likely to blur a bit. Regardless, the massive stakes involved means we probably have not heard anything resembling the last word on this issue. But what is the right way forward?
One possibility is yet another attempt to resuscitate the SOPA/PIPA regime. There are plenty of reasons to believe that SOPA/PIPA-type solutions will resurface – content wields considerable influence in Washington, and PIPA itself is in many ways the second coming of Patrick Leahy’s 2010 anti-piracy bill, COICA.
But a legislative response to foreign piracy could take other forms as well. Some have suggested that the end of SOPA/PIPA will herald the return of the Online Protection and Enforcement of Digital Trade Act, or “OPEN,” a bill sponsored by Sen. Ron Wyden (D-OR) and Rep. Darrell Issa (R-CA) as an alternative to SOPA/PIPA. OPEN would give the International Trade Commission jurisdiction to hear complaints against foreign infringing sites and to order their defunding (but not blocking). Supporters say that administrative resolution will be faster than courts, but preserve due process, but large content-side interests disagree. The MPAA issued a statement arguing that resolution by the ITC would be too slow to be effective against the nimble networks of pirate content hosts.
However, some experts believe that legislation is not the only – or even the best – option for responding productively to web piracy. According to Peter S. Menell, Berkeley Law professor and Director/Co-founder of the Berkeley Center for Law & Technology, “Inter-industry agreements are in many respects better than new laws, because the law is not nearly as adept at changing over time as technology changes . . . the [user generated content] issue was helpfully addressed in that way.”
Some entertainment attorneys agree that market-based solutions may have greater effectiveness than legislation. “An ideal approach,” said Gordon Firemark, L.A.-based entertainment attorney, author, and host of the podcast Entertainment Law Update, “would involve education, to help people understand that blood, sweat, and tears go into the work they are downloading . . . and would also work to make [licensed content] available in ways that give casual infringers more incentive to pay.” “But,” he continued, “it may also be the case that we actually need some sort of international adjudicatory system for dealing with these issues due to the global nature of [online piracy].”
Although protecting intellectual property in a way that is well-suited to the digital information age might yet be a distant goal, those who deal with these policy issues on a daily basis seem pleased to see public engagement on intellectual property and technology issues. Experts on all sides of the debate indicated they would like to see this issue remain in the spotlight for 2012. Even though historically intellectual property rights have not been a hot potato in presidential politics, it will be interesting to see whether the ubiquitous nature of the Internet in the daily lives of Americans can bump this issue to primetime this fall.
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