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Is the Stop Online Piracy Act Bad for America?

The House Judiciary Committee held hearings today on a bill designed to crack down on Web-based music and video piracy, and opponents say if it passes, it could censor the Web for Americans and potentially violate their privacy.

The bill, the Stop Online Piracy Act, or SOPA, was introduced on Oct. 26 by Reps. Lamar Smith, R-Texas, and Howard Berman, D-Calif. It is the companion to a Senate bill, the PROTECT IP Act (“Prevent Real Online Threats to Economic Creativity and Theft of Intellectual Property”), which was introduced on May 12 by Sen. Patrick Leahy, D-Vt. That bill cleared the Senate Judiciary Committee, but was placed on indefinite hold by Sen. Ron Wyden, D-Ore.

SOPA and PROTECT IP target overseas websites that host pirated files of movies, music and TV shows (such as the Pirate Bay or MegaUpload), or stream video of international events across borders. (Broadcast rights to sports events are sold on a country-by-country basis.)

Tech companies have come out in opposition to the bills, as has Rep. Zoe Lofgren, D-Calif., whose district includes part of Silicon Valley. Other opponents in Congress include Rep. Darrell Issa, R-Calif., and presidential candidate Rep. Michele Bachmann, R-Minn. On the other side are the industries that say they have suffered from music and movie piracy to the tune of $200 billion, according to a U.S. Chamber of Commerce report.

Current law, under the Digital Millennium Copyright Act (DMCA), says if a site is infringing a copyright — such as posting a video clip — and the owner of that copyright wants to have it taken down, they can contact the site owner or manager and tell them. The site then has to take it down, or they can be sued. But key to that is that the owner has to take action (such as filing a suit) to get the infringer to stop. The DMCA also says site administrators — such as Yahoo! or YouTube — aren’t responsible for policing their users.

The new law changes that. It says the copyright owner has only to notify the alleged infringer that there is a problem. If no answer comes within five days, the owner can go to a judge and have an order signed that takes the site down.

More than that, though, is the provision that says a copyright owner can send notice directly to payment providers such as PayPal or Visa, demanding that they cut off all payments to the website. The payment processor is then responsible for notifying the website. A website can answer the allegation that it is infringing, but it would be costly and it has to do so within the five-day window, even if it was notified by its payment provider — and the clock starts ticking when the original notice is filed, not when the targeted website gets it.  The law also defines aiding infringement broadly — it includes any technologies that allow for circumventing copyright protections.

SOPA also allows the payment processors (as well as advertising partners and the like) to cut off service voluntarily, if they think a site is infringing on copyrights. This is one reason big technology companies such as Google (which owns YouTube) have come out so strongly against the bill — Visa or PayPal could decide that a site is infringing, and act based on that belief rather than in response to any legal action.

In addition, the government is allowed to “filter” the domain name servers of sites that are defined as helping copyright infringement. This provision would have the U.S. government doing something akin to what happens in China — a search for a given website would draw a blank. A number of people in the technology industry have said there are serious security implications as well.

The Judiciary Committee called six witnesses during the hearing today. Five were in support of the bill, and one in opposition.

Maria Pallante, the Register of Copyrights at the Library of Congress, said the provision covering search engines asking them to disable direct links to infringing sites would keep consumers from going to infringing sites believing they are legitimate. She also said the payment providers aren’t required to take action if a counter-notification — the answer to an infringement claim — is filed by the target site.

“[SOPA] allows the attorney general to stop the participation of service providers, search engines, payment processors and advertising networks with respect to the infringers, by obtaining court orders that are not readily available under current law. In my view, such tools are essential to stopping the economic devastationcaused by rogue websites,” she said.

Katherine Oyama, copyright counsel at Google, said among the concerns of the tech industry are the requirements that a site act if there is a “high probability” that the site is used to infringe. That would essentially force sites such as Google or Twitter to monitor their users to seek out links to infringing sites. “Because some rightsholders will likely contend that there is a ‘high probability’ that all social networking and user-generated content sites are used for infringement by some users, this provision could effectively force those site operators to actively monitor their users’ activities,” she said. This is in violation of the DMCA, she added.

Michael O’Leary, senior executive vice president, global policy and external affairs at the the Motion Picture Association of America said the DMCA isn’t sufficient. “The rogue websites and cyberlockers … are not legitimate. They do not act in good faith. They do not comply with DMCA requests, because their purpose is to traffic in stolen content. And when they are based overseas, they can simply thumb their noses at U.S. law.”

He also argued that the copyright holder has to demonstrate real harm, as per the current federal rules of evidence. That means content owners don’t have the arbitrary power to shut down a site. “Content owners that file frivolous or unsupported claims could face damages, including costs and attorneys’ fees,” O’Leary said. 

Another issue for tech companies is the part of the law that says illegal sites can’t be served by direct links. It isn’t clear what that would mean for a service such as Google, which offers previews of some sites. “Does a search engine have to parse every link on a Web page to determine whether the page includes a link to a ‘foreign infringing site’ before displaying it as a preview?” Oyama said.

Oyama also said the bill may rub up against the First Amendment. While it is well accepted that laws can be made to protect copyrights, she said SOPA was drawn too broadly, penalizing a site in which only a part of it is infringing.

SOPA has been subject to a last-minute campaign against it from tech companies and Internet users. Mozilla has a link to a page calling for opposition to the bill, and Facebook, Zynga and Twitter were among the signatories to a letter to Congress opposing it. Several organizations including the Electronic Frontier Foundation, The Free Software Foundation, Mozilla and Creative Commons called Nov. 16 “American Censorship Day” and have called on citizens to write their congressmen.