Some thoughts about SOPA

I don’t need to tell you all what the US Stop Online Piracy Act is about, because the Internet has talked about nothing else for the last few days (or at least, those parts of the Internet which haven’t been closed in protest against SOPA). It caused a great, great deal of controversy, far more than the UK’s Digital Economy Act ever did. Now it has been put on ice until “consensus” can be reached. 

This is a short post with some thoughts from me about SOPA.  For anyone who might be in doubt, I was opposed to SOPA, for the reasons I set out below.  That said, I thought it might be helpful to actually read SOPA and give you some legal comments about it.  Here goes…

How SOPA would work:

The stated objective of SOPA was to tackle websites which are “dedicated to illegal or infringing activity”, but which are outside the USA’s legal reach (i.e. they’re based outside the USA geographically). Based on my reading of the draft legislation, it would work something like this:

(i) A rights holder (e.g. a movie studio or games publisher) and/or the US government identifies a site involved with illegal or infringing activity.

(ii) It can then notify the support network around that site – e.g. ad networks or payment providers but also ISPs – to cease supporting the site.

(iii) The support network then decides whether to cease supporting the site and/or sends a notification to the site.

(iv) The site can then send a counter notice explaining why it objects to the original notice from the rights holder (i.e. why it shouldn’t have support withdrawn).

(v) The rights holder can then sue for a court order banning anyone assisting the site. If the rights holder wins, then in practice it can shut down or starve out the site.

(vi) The site’s main protection is that it can sue for damages if it is “knowingly misrepresented” to be involved in illegal/infringing activity.

My main (legal) problems with SOPA are these:

(1) it circumvents due process, by effectively encouraging the support network around a web site to withdraw its support and then deal with the consequences later – rather than testing it out in court.

(2) there are already legal mechanisms in place to deal with websites that in any way involve or encourage content piracy – I’ve not been persuaded, nor seen any evidence, that additional powers are needed.

(3) The actual wording of the draft legislation was far wider than its stated objectives. I’d encourage that anyone interested in this point actually reads the draft legislation rather than relying on press reports/commentary about it. You can find it here: http://www.opencongress.org/bill/112-h3261/text.

I deal with legal wording all the time and I can see that the draftsman tried to cut down the ambit of the legislation somewhat, principally by peppering the key clauses with the phrase “an Internet site dedicated to theft of US property“, which it defined at length as follows:

“Section 103:

1) DEDICATED TO THEFT OF U.S. PROPERTY- An ‘Internet site is dedicated to theft of U.S. property’ if–

(A) it is an Internet site, or a portion thereof, that is a U.S.-directed site and is used by users within the United States; and

(B) either–

(i) the U.S.-directed site is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates–

(I) a violation of section 501 of title 17, United States Code;

(II) a violation of section 1201 of title 17, United States Code; or

(III) the sale, distribution, or promotion of goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Lanham Act or section 2320 of title 18, United States Code; or

(ii) the operator of the U.S.-directed site–

(I) is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation of section 501 or 1201 of title 17, United States Code; or

(II) operates the U.S.-directed site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation of section 501 or 1201 of title 17, United States Code, as shown by clear expression or other affirmative steps taken to foster infringement.”

I don’t think it needs a great long legal analysis from me of the meaning of that passage above for us to see that, in fairness to the drafters of SOPA, they made an effort to cut down the scope of the Act.  Clearly weren’t intending some kind of Wild West scenario where they can take aim at any web site they like – they were trying to focus upon sites which are basically built for content piracy and nothing else. BUT, the big problem is that the wording is still too wide.  Worse, if it became law, the interpretation of the wording would pass to rights holders (who would actually take action first) and then pass to a judge only if the web site objects and forces the rights holder to take legal action.

In other words, my problem #3 re the wording with SOPA is this: it wasn’t as bad as some folks made out, but it was still bad enough to cause a real problem.

[It’s also worth noting that other opponents of SOPA would add two more problems with it: (4) that it restricts free speech; and (5) legal action is not the solution to piracy. As to (5), as readers will know, I’ve defended the right of rights holders to take legal action to defend themselves if necessary but equally I think that’s just ONE option that we can take – there are lots of other, better routes we should follow too, like better technological/business models]

Anyway, as I said, SOPA has been killed off for the time being. Its US Senate cousin, PIPA, may or may not be put on ice as well – let’s see what the next month or so brings.

How does this matter?

Clearly if SOPA had come into being then it would have handed a new and powerful weapon to rights holders, which could quite possibly have been misused in the wrong hands. The setback to SOPA is clearly a victory for its opponents – but SOPA and its ilk aren’t dead yet. On the contrary, the tide of legal change over the last year or so has very much been on the side of those in favour of piracy laws. For example, the Digital Economy Act passed in the UK back in 2010 gives the UK government the power to take steps very much like those in SOPA – but it hasn’t activated them yet. In the meantime, rights holders have taken to court action – such as the successful attempt to force BT to block access to Newzbin. In France, as another example, the government has pressed ahead with its controversial HADOPI legislation.  There have recently been similar attempts or an ongoing process in countries like Canada and Australia, too.

They, and laws like them, won’t go away anytime soon. That said, as I set out in my 2012 predictions earlier this month, I’m hoping that this year marks the high water point for the kind of attitude that thought wide-ranging laws like SOPA were ok, and instead we see a new approach which combines an evidence-led approach to piracy combined with an understanding that legal action is just one of many options (and possibly the action of very last resort).  We also need laws that balance the interest of large rights holders with those of small rights holders, consumers and others in the Internet ecosystem.  Piracy is important, and it needs to be dealt with, but worrying about piracy alone and only taking legal action over it can’t make good content and it won’t make for a good business, either.

To round off, I thought I’d quote my favourite of the high profile responses to SOPA, that of Jimmy Wales of Wikipedia, who I thought was closest to my thinking regarding SOPA and the legislative approach it represents:

“Proponents of SOPA have characterised the opposition as being people who want to enable piracy or defend piracy…But that’s not really the point. The point is the bill is so over broad and so badly written that it’s going to impact all kinds of things that…don’t have anything to do with stopping piracy.”