Sites Respond to Congressional Attempts to Crack Down on Infringement

Posted by By at 16 November, at 22 : 38 PM Print

Chances are if you spent any time on the Internet today, you may have noticed something a little peculiar. Specifically, if you logged in to check sites like Boingboing.net or Reddit.com, you may have noticed a large black bar covering the masthead of each site, emblazoned with the words ‘Stop Censorship.’

These sites were just two of hundreds participating in a grassroots effort, known as “American Censorship Day” to combat three bills currently pending in the House and Senate that would drastically impact how the internet operates. A coalition of organizations, including the Electronic Frontier Foundation, the Mozilla Foundation, and the Free Software Foundation, organized the effort which attempted to draw attention and elicit constituent response to the bills which have received bipartisan support in Congress (including Rep. Thomas Marino (R-PA-10) and Sen. Robert Casey (D-PA)), while facing widespread scorn and derision on the internet.

Two of the bills, S. 968, known as the Protect IP Act (PIPA) and H.R. 3261, the Stop Online Piracy Act (SOPA), are attempts to combat the problem of online piracy, with an emphasis on foreign copyright infringement. Although the bills are not identical, both pieces of legislation attack the problem of piracy by imposing strict new requirements on intermediaries, including Internet Service Providers (ISPs), search services, and payment processors, to block access to sites that provide or otherwise facilitate copyright or trademark infringement.

Both bills would provide the U.S. Attorney General with broad new powers to pursue “foreign infringing site[s]” which are defined as websites located outside of the United States that commit or “facilitate” the commission of copyright or trademark infringement. Under the proposed legislation, a court could then issue an injunction requiring ISPs, search engines, and payment or ad networks to cut off or block the allegedly-infringing site from the internet. The AG would also be granted the power to go after the intermediaries if they fail to comply with any order.

Language in SOPA goes even farther, by giving content owners an affirmative right to target the financial supports behind a website, based solely on a rightsholder’s allegation of infringement. Content owners have had the ability to take down allegedly-infringing content found on any U.S. website for over a decade under the Digital Millennium Copyright Act (DMCA), however Section 103 of the SOPA expands that right by imposing additional duties on payment and advertising providers to cease doing business entirely with any site “dedicated to the theft of U.S. property.”

Although such language sounds narrow in scope, the definition of what constitutes a “dedicated” site under the bill is so broadly written that it would effectively impose an affirmative duty on site owners to screen all content on their sites–from user-created media to the links in comments–in order to ensure that materials on their sites don’t infringe–or risk being cut-off from their revenue streams. The law also grants copyright owners extended rights to pursue an infringement action against an allegedly-infringing site in cases where payment or advertising networks refuse to cut them off directly. This eviscerates the safe-harbor protections afforded to service and content providers under the DMCA. Faced with the prospect of thousands of takedown requests and threats of litigation, the practical consequences are that user-contributed content sites like YouTube, Facebook, or even Google would either cease to exist, or would be so limited in their offerings as to radically change what we have come to expect from the internet.

Finally, Section 201 of SOPA would impose criminal penalties on even a single act of infringement. This represents a substantial change from the current law, which usually requires commercial exploitation and multiple instances of infringement.

The committee received nine “statements of support” for the bill — notably from organizations including Comcast, NBC Universal, the Directors Guild of America and the National Songwriters Association. The internet protest was timed to coincide with a House Judiciary Committee hearing on H.R. 3261 that was held earlier that day. The full committee hearing is available here: http://judiciary.house.gov/hearings/hear_11162011.html

Photo by Fikra

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This post was written by:
- who has written 6 posts for Rock The Capital
Carey N. Lening, Esq. is a solo practitioner, writer, and lecturer who is devoted to legal issues relating to technology, security & privacy, social media, and intellectual property. She writes on areas ranging from business data privacy and security to the legislative changes affecting privacy, copyright, and trademark law. Ms. Lening received her Juris Doctorate from Pierce Law Center of Concord, NH. Prior to opening her practice, Ms. Lening was a journalist for BNA’s Patent, Trademark & Copyright Journal. - Email Carey Lening

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