The SOPA/PIPA Controversy
Rights owners have long struggled to protect their intellectual property in the digital era. Two decades of instant copying and high-speed broadband are to blame for a significant downturn in cinema receipts and individual unit sales of CDs, DVDs and software. Rights holders have levied accusations that search engines have profited from linking advertising revenue to sites that host infringing material. To combat copyright infringement, rights owners have undertaken a multi-pronged approach to tackle illegal file-sharing and other ‘pirated’ content. Measures taken have included education, pushing for the imposition of sanctions – both criminal and civil, and pressuring national legislatures to propose tougher legislation granting rightsholders’ broad authority to shut down infringing sites ultimately creating economic scarcity for creative work. SOPA in the US House of Representatives, and its companion legislation in the US Senate, the PROTECT IP Act or PIPA, attempt to address the perceived problem of non-US websites engaged in infringing activity. Because these so-called “rogue” websites have domain names registered outside of the US (for example, “.uk” rather than “.com”) and are hosted on servers outside of the United States, they are out with the jurisdiction of American courts and the existing enforcement mechanisms under US law. (SOPA and PIPA are part of a broader enforcement strategy, including the federal government’s seizure of hundreds of domain names registered in the United States and criminal prosecutions brought against the operators of web site, “Megaupload.com”.) Although the bills have technical differences, their basic approach is the same. They would require intermediaries subject to US jurisdiction to block access to the foreign websites, or to prevent the flow of revenue to these sites. More specifically, SOPA and PIPA would authorise in rem lawsuits in US courts against a domain name associated with a site dedicated to infringing activity. If the court found that the website met the statutory standard, the court would issue an order which would be served on four categories of intermediaries. ISPs would be required to prevent the domain name from resolving to an Internet protocol address. In other words, when a user typed the domain name of the non-US site into his browser, the service provider would not connect the user to the non-US website. Search engines (for example, Google, Bing or other sites that direct users to other online locations) would be required to disable links to the non-US site. Payment systems (for example, Visa or MasterCard) would be required to refuse payment transactions between customers with US accounts and the account used by the operator of the non-US site. Internet advertising networks (for example, Google AdWords or AdSense) would not be able to place advertisements on the non-US site or have sponsored links to the non-US site.
If intermediaries did not comply with an order, they would be subject to enforcement proceedings. SOPA and PIPA provoked the following sharp criticisms from Internet companies and users. Although the bills’ sponsors said that they were targeting the “worst of the worst” foreign websites, the bills, as introduced, applied to both US and non-US websites. Moreover, a small amount of infringing content within a large website could, conceivably, trigger a remedy that would apply to the entire website. Compliance with the Digital Millennium Copyright Act’s (DCMA) notice-and-takedown procedures would not provide a safe harbour. Thus, websites that host user-generated content, including cloud-computing sites, could be affected. All four types of actions required by intermediaries raised concerns, because they were targeted at websites rather than specific content within those websites. These were blunt instruments that could lead to the termination of the provision of lawful as well as unlawful content.
The domain name and search engine blocking remedies were particularly controversial. Both approaches are used by governments which restrict free expression. Thus, US endorsement of these methods to block access to content that the US government considers illegal (i.e. IP infringing) would legitimate other countries’ use of these methods to block access to content they consider illegal (e.g., criticism of the government). Indeed, a letter from Members of the EU Parliament stated that “blocking of websites, by DNS or otherwise, severely undermines America’s credibility in the global information society.” Google has fully complied with DMCA requirements for rapid “take-down” of videos that conflict with intellectual property owners’ legitimate claims. Google has also gone much further than the DMCA requires, by implementing a comprehensive “Content ID” system to pro-actively flag uploaded content matching the “signatures” provided by content owners (resulting in various actions, some of which are punitive in nature). Some observers would argue that this latter feature can sometimes be too aggressive, by flagging content that actually meets “fair use” requirements. Additionally, take-down tools (or legal threats and actions) are sometimes used by governments not to enforce copyright restrictions per se, but in reality for raw censorship of political or religious material that is considered to be undesirable or offensive to particular groups — in the process sometimes cutting off access to those videos to everyone around the planet.
Domain name blocking also has the potential to introduce cyber-security vulnerabilities. Court-mandated domain name blocking requires service providers to return authenticated and unencrypted responses to domain name queries in contravention of emerging cyber-security protocols. Moreover, as users attempted to circumvent the domain name blocking they would use foreign domain name service providers that did not comply with US government cyber-security standards. Because both bills provide for private rights of action, the volume of cases could be very large, and the intermediaries would need to take action with regard to many sites, at great expense.