WEB EXCLUSIVE - SOPA and PIPA: How these bills might affect you

The controversial SOPA (Stop Online Piracy Act) and PIPA (PROTECT IP Act – “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011”) are set to be debated during upcoming committee hearings on Capitol Hill, and this week marked the peak of public debate about the bills, as Wikipedia, Google and other tech companies engaged in “blackouts” of their Web sites on Jan. 18 to protest the bills’ potential impacts on the Internet.

The twin acts – SOPA being House Bill 3261, and PIPA being Senate Bill 968 – are both very similar in nature. And, just by hearing the names of these bills, one might think they sound like good things, something we need, as our country is based on capitalism and intellectual property rights.

But that may not be the case. After doing a little bit of research on the nature of these bills, one learns that our fundamental rights as American citizens might be at risk. Still, the bills have the support of many people and companies, and many legislators.

What SOPA and PIPA mean

House Bill 3261, or the Stop Online Piracy Act, is a bill introduced on Oct. 26, 2011, by House Judiciary Committee Chair Rep. Lamar Smith (R-Texas) in the House of Representatives. According to the Washington Post, “This bill will expand the ability of federal law enforcement to shut down foreign Web sites and services that use counterfeited or pirated content created by U.S. firms. The bill also includes provision that could hold third parties — payment processing and other partners — responsible for piracy and counterfeiting on other sites, some critics say.”

SOPA could allow the U.S. Department of Justice and/or copyright holders themselves to seek court orders against Web sites accused of enabling or facilitating copyright infringement. If the DOJ requests the court order, they could bar search engines from linking to the infringing site, order domain name registrars to take down the Web site and Internet service providers to block subscriber access to the site accused of infringing, essentially wiping from the Internet, without a chance for the Web site owners to defend themselves.

If the request is made by copyright holders, they could also require online advertising networks and payment processors to stop supporting the infringing site, which could include U.S. based Web sites and services, such as PayPal, as well as foreign Web sites.

Senate Bill 968, or the PROTECT IP Act, was introduced in the Senate on May 12, 2011, and defines infringement as distribution of illegal copies, counterfeit goods or anti-digital rights management technology. Infringement exists if “facts or circumstances suggest [the site] is used primarily as a means for engaging in, enabling or facilitating the activities described.”

The bill requires the U.S. Attorney General to serve notice to the defendant in such claims and, once the court issues an order, it could be served on financial transactions providers, Internet advertising services, Internet service providers and information location tools, to require them to stop financial transaction to the rogue site and remove links to it.

The term “information location tool” is borrowed from the Digital Millennium Copyright Act and is understood to refer to search engines but could cover other sites that link to content, such as Wikipedia or even personal Web sites.

Search engines would be ordered to: (1) remove or disable access to the Internet site associated with the domain name set forth in the [court] order; or (2) not serve a hypertext link to such Internet sites.

Trademark and copyright holders who have been harmed by the activities of a Web site alleged to be dedicated to infringing activities would be able to apply for a court injunction against the domain name, to compel financial transaction providers and Internet advertising services to stop processing transactions to and placing ads on the Web site but would not be able to obtain the domain name remedies available to the Attorney General.

The bills are supported predominantly by the film and music industries, which argue that illegal downloads of their copyrighted works are stifling their business and that they can’t afford less stringent means being instituted to deal with the problem or for Congress to wait to enact these kinds of strict measures to help protect their property.

Blackouts and opposition

A number of prominent technology companies and free-speech advocates have rallied in recent months to oppose SOPA and PIPA, with a number of them taking up a blackout of some or all services on Jan. 18 to protest the bills.

According to Google’s page in opposition to SOPA and PIPA, so far, 41 human rights organizations and 110 prominent law professors have expressed grave concerns about the bills; and 55 of America’s venture capitalists have expressed concern that PIPA “would stifle investments in Internet services, throttle innovation and hurt American competitiveness.” More than 204 entrepreneurs told Congress that PIPA and SOPA would “hurt economic growth and chill innovation.”

Also on Google’s page, they claim that these bills won’t even do what they’re supposedly intended to do. The censorship regulations written into the bills won’t even shut down the pirate sites. They will be able to just change their addresses and continue their criminal activity, while law-abiding companies could suffer high penalties for breaches they can’t possibly control.

The English page for Wikipedia, as many may have noticed, decided to protest SOPA and PIPA by blacking out its content for 24 hours on Wednesday.

In the usual place of the home page, visitors will find a grey, white and black page with the text: “Imagine a World without Free Knowledge. For more than a decade, we have spent millions of hours building the largest encyclopedia in human history. Right now, the U.S. Congress is considering legislation that could fatally damage the free and open Internet. For 24 hours, to raise awareness, we are blacking out Wikipedia. Learn more. Contact your representatives.”

In the event of emergencies, Wikipedia left accessible its mobile site, so those with a true need could still access the information in the self-proclaimed “world’s largest encyclopedia.”

Craigslist joined Wikipedia on Wednesday by showing a black page in opposition to the bills, but at the bottom of that page, users who wish to can click a link to continue on to the regular Web site. Craigslist says on their site, “PIPA and SOPA are too dangerous to revise. They must be killed entirely.”

The dangers of poorly crafted legislation are many. Unlike the burden of proof in most criminal cases, allegations of copyright infringement are already routinely dealt with proactively by Internet service providers, who, in most cases, remove Web sites accused of infringement immediately upon notification, and who require the accused to prove that they have a legitimate right to use the material in question.

Fair use, such as material used in education, or for parody, isn’t always recognized in these situations, and something as small as having a copyrighted work of art or music in the background of a home video can be grounds for having it removed without recourse.

Additionally, there have already been cases in which intellectual property rights holders have been found to have incorrectly, and perhaps knowingly, claimed violations when there were none. The film and music industries have found it manageable to monitor availability of files loosely matching their copyrighted material but not always manageable to ensure that the files do, in fact, contain their property.

As a case in point, a claim of infringement may well target an independent singer-songwriter’s self-released file of their own work, just because it has the same title as a protected work. And the independent artist – or the independent music Web site – has little recourse when faced with the big guns of the entertainment industry.

Additionally, the blogger who copies a recipe from a favorite cookbook, the Facebook user who posts an image from a gallery Web site and the lay-critic who pulls a quote from a popular novel without getting permission first are also at risk. These are all technical violations of intellectual property rights, ripe for aggressive enforcement action by companies whose lawyers spend all day looking for such cases.

But the little guy isn’t the only one at risk. Craigslist, eBay, Sears, Costco and other lesser-known sites have already been listed as a rogue sites by tech company Monster Cable for reselling or wholesaling – legitimately purchased – Monster-brand cables. Monster Cable maintains that resale of their cables by Craigslist and eBay users reduces Monster Cable’s new cable sales. Under SOPA and PIPA, they could quash those re-sales by filing copyright complaints against such sites and forcing their removal from the Internet.

Already, eBay regularly deals with complaints against sellers of trademarked and copyrighted goods and materials, with listings routinely removed for violations as simple as referencing a trademarked name or using a product photo copyrighted to the manufacturer.

PIPA is opposed by companies and individuals, including the Mozilla Corporation, Facebook, Electronic Frontier Foundation, Yahoo!, eBay, American Express, Reddit, Google, Reporters Without Borders, Human Rights Watch, English Wikipedia, Uncyclopedia, Reid Hoffman of LinkedIn, Twitter co-founder Evan Williams and FourSquare co-founder Dennis Crowley. Even the Tea Party Patriots have argued that the bill “is bad for consumers.”

SOPA is opposed by Google, Yahoo!, YouTube, Facebook, Twitter, AOL, LinkedIn, eBay, Mozilla Corporation, Roblox, Reddit, the WikiMedia Foundation and human right organizations such as Reporters Without Borders, the Electronic Frontier Foundation, the ACLU and Human Rights Watch. Kaspersky Lab, a maker of computer security software, showed its opposition by deciding “to discontinue its membership in the Business Software Alliance,” which has supported SOPA.

An organized boycott of domain registration and hosting provider GoDaddy peaked last month with the loss of tens of thousands of customers by the company when it was found to have supported SOPA. The company has since backed off its support.

Even the White House has spoken out about SOPA in its current form, though it does maintain that some sort of anti-piracy measures are needed, but the new measures, it says, must not inhibit innovation and must guard against censorship.

Final thoughts

I am not against trademark and copyright holders protecting their works, but I believe these bills are too broad and would give too much power to these IP rights holders. Web sites that allegedly infringe upon the rights of the copyright holders need to be judged on and ruled upon, fairly, by intellectual property experts and judges who are fluent in these matters.

What if Monster Cable gets its way and eBay, Craigslist and other similar sites get taken down? We paid for those cables, and if we want to sell them or even give them away, that’s our business, not Monster Cable’s. This could set a precedent in this country where things we spend our hard-earned dollars on would not be owned by us but would, in effect, only be on loan to us. The ramifications of this sea change in property rights are far-reaching.

Intellectual property rights holders already have legal “big sticks” with which to pursue their rights. One could argue that using the U.S. government to expand that protection further shifts the balance in that battle not from the pirate to the rights holders but from the consumer, the little guy, to the big corporation.

In the past, industries have found that, through innovation, they can curb losses to pirating activity. The fact that, today, more songs are downloaded than purchased on physical media is a testament to that fact, when a decade ago, the music industry warned its death was on the horizon due to piracy through Napster. Now, most consumers buy their music online, through iTunes, Amazon.com and other services, and directly from artists.

Recognizing that most people are honest and will pay for content they value, these industries may be better served by putting their efforts into figuring out how to appeal to the consumer, rather than treating them like shoplifting suspects. Give them a reason to pay a fair price for access, and the pirates are put on the run.

From the little bit of research I’ve done, OPEN (the Online Protection & ENforcement of Digital Trade) Act seems to be a lot closer to a fair and effective way to deal with online piracy, and it helps to protect those companies and Web sites that are doing legitimate business on the Web. Beyond that, legislation that garners the support of both sides in the battle against piracy is the only way we can help protect intellectual property without hurting the average person.

So, before SOPA and PIPA go before their respective legislative bodies, do your own research, check out OPEN Act, as well, and make your own decision. We need to make sure we get this one right, as this will forge the future in trademark and copyright law for many generations in the future. Don’t be afraid to speak out for what you believe.