The Stop Online Piracy Act (SOPA), also known as House Bill 3261 or H.R. 32, is a bill that was introduced in the United States House of Representativeson October 26, 2011, by House Judiciary Committee Chair Representative Lamar S. Smith (R-TX) and a bipartisan group of 12 initial co-sponsors. The bill, if made law, would expand the ability of U.S. law enforcement and copyright holders to fight online trafficking in copyrighted intellectual property and counterfeit goods.Presented to the House Judiciary Committee, it builds on the similar PRO-IP Act of 2008 and the corresponding Senate bill, the PROTECT IP Act.
The originally proposed bill would allow the U.S. Department of Justice, as well as copyright holders, to seek court orders against websites accused of enabling or facilitating copyright infringement. Depending on who makes the request, the court order could include barring online advertising networks and payment facilitators from doing business with the allegedly infringing website, barring search engines from linking to such sites, and requiring Internet service providers to block access to such sites. The bill would make unauthorized streaming of copyrighted content a crime, with a maximum penalty of five years in prison for ten such infringements within six months. The bill also gives immunity to Internet services that voluntarily take action against websites dedicated to infringement, while making liable for damages any copyright holder who knowingly misrepresents that a website is dedicated to infringement.
Proponents of the bill say it protects the intellectual property market and corresponding industry, jobs and revenue, and is necessary to bolster enforcement of copyright laws, especially against foreign websites.They cite examples such as Google's $500 million settlement with the Department of Justice for its role in a scheme to target U.S. consumers with ads to illegally import prescription drugs from Canadian pharmacies.
Opponents say that it violates the First Amendment, is Internet censorship, will cripple the Internet,and will threaten whistle-blowing and other free speechactions. Opponents have initiated a number of protest actions, including petition drives, boycotts of companies that support the legislation, and planned service blackouts by English Wikipedia and major Internet companies scheduled to coincide with the next Congressional hearing on the matter.
The House Judiciary Committee held hearings on November 16 and December 15, 2011. The Committee was scheduled to continue debate in January 2012,but on January 17 Chairman Smith said that "[d]ue to the Republican and Democratic retreats taking place over the next two weeks, markup of the Stop Online Piracy Act is expected to resume in February."
Goals
Protecting intellectual property of content creators
According to Rep. Goodlatte, "Intellectual property is one of America's chief job creators and competitive advantages in the global marketplace, yet American inventors, authors, and entrepreneurs have been forced to stand by and watch as their works are stolen by foreign infringers beyond the reach of current U.S. laws. This legislation will update the laws to ensure that the economic incentives our Framers enshrined in the Constitution over 220 years ago—to encourage new writings, research, products and services— remain effective in the 21st century's global marketplace, which will create more American jobs."
Rights-holders see intermediaries—the companies who host, link to, and provide e-commerce around the content—as the only accessible defendants.
Sponsor Rep. John Conyers (D-MI) said, "Millions of American jobs hang in the balance, and our efforts to protect America's intellectual property are critical to our economy's long-term success."Smith added, "The Stop Online Piracy Act helps stop the flow of revenue to rogue websites and ensures that the profits from American innovations go to American innovators."
The Motion Picture Association of America (MPAA) representative who testified before the committee said that the motion picture and film industry supported two million jobs and 95,000 small businesses.
Protection against counterfeit drugs
Pfizer spokesman John Clark testified that patients could not always detect cleverly forged websites selling drugs that were either mis-branded or simply counterfeit.
RxRights, a consumer advocacy group, issued a statement saying that Clark failed "to acknowledge that there are Canadian and other international pharmacies that do disclose where they are located, require a valid doctor's prescription and sell safe, brand-name medications produced by the same leading manufacturers as prescription medications sold in the U.S." They had earlier said that SOPA "fails to distinguish between counterfeit and genuine pharmacies" and would prevent American patients from ordering their medications from Canadian pharmacies online.
Bill sponsor Smith accused Google of obstructing the bill, citing its $500 million settlement with the DOJ on charges that it allowed ads from Canadian pharmacies, leading to illegal imports of prescription drugs.Shipment of prescription drugs from foreign pharmacies to customers in the US typically violates the Federal Food, Drug and Cosmetic Act and the Controlled Substances Act.
Impact on websites
Websites that host user content
Opponents have warned that SOPA would have a negative impact on online communities. Journalist Rebecca MacKinnon argued in an op-ed that making companies liable for users' actions could have a chilling effect on user-generated sites such as YouTube. "The intention is not the same as China’s Great Firewall, a nationwide system of Web censorship, but the practical effect could be similar," she says.TheElectronic Freedom Foundation (EFF) warned that websites Etsy, Flickr and Vimeo all seemed likely to shut down if the bill becomes law.Policy analysts for New America Foundation say this legislation would enable law enforcement to take down an entire domain due to something posted on a single blog, arguing, "an entire largely innocent online community could be punished for the actions of a tiny minority."
Additional concerns include the impact on common Internet functions such as linking or access data from the cloud. EFF claimed the bill would ban linking to sites deemed offending, even in search results and on services such as Twitter. Christian Dawson, Chief Operating Officer (COO) of Virginia-based hosting company ServInt, predicted that the legislation would lead to many cloud computing and Web hosting services moving out of the US to avoid lawsuits. The Electronic Frontier Foundation have stated that the requirement that any site must self-police user generated content would impose significant liability costs and explains "why venture capitalists have said en masse they won’t invest in online startups if PIPA and SOPA pass."
Proponents of the bill countered these claims, arguing that filtering is already common. Michael O'Leary of the MPAA testified on November 16 that the act's effect on business would be more minimal, noting that at least 16 countries already block websites, and that the Internet still functions in those countries. MPAA Chairman Chris Dodd noted that Google figured out how to block sites when China requested it.Some ISPs in Denmark, Finland, Ireland and Italy blocked The Pirate Bay after courts ruled in favor of music and film industry litigation, and a coalition of film and record companies has threatened to sue British Telecom if it does not follow suit. Maria Pallante of the US Copyright Office said that Congress has updated the Copyright Act before and should again, or "the U.S. copyright system will ultimately fail." Asked for clarification, she said that the US currently lacks jurisdiction over websites in other countries.
Weakening of "safe harbor" protections
The 1998 Digital Millennium Copyright Act (DMCA) includes the Online Copyright Infringement Liability Limitation Act, that provides a "safe harbor" for websites that host content. Under that provision, copyright owners who felt that a site was hosting infringing content are required to request the site to remove the infringing material within a certain amount of time. SOPA would bypass this "safe harbor" provision by placing the responsibility for detecting and policing infringement onto the site itself, and allowing judges to block access to websites "dedicated to theft of U.S. property."
According to critics of the bill such as the Center for Democracy and Technology and the Electronic Frontier Foundation, the bill's wording is vague enough that a single complaint about a site could be enough to block it, with the burden of proof resting on the site. A provision in the bill states that any site would be blocked that "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." Critics have read this to mean that a site must actively monitor its content and identify violations to avoid blocking, rather than relying on others to notify it of such violations.
Law professor Jason Mazzone wrote, "Damages are also not available to the site owner unless a claimant 'knowingly materially' misrepresented that the law covers the targeted site, a difficult legal test to meet. The owner of the site can issue a counter-notice to restore payment processing and advertising but services need not comply with the counter-notice."
Goodlatte stated, "We're open to working with them on language to narrow [the bill's provisions], but I think it is unrealistic to think we're going to continue to rely on the DMCA notice-and-takedown provision. Anybody who is involved in providing services on the Internet would be expected to do some things. But we are very open to tweaking the language to ensure we don't impose extraordinary burdens on legitimate companies as long as they aren't the primary purveyors [of pirated content].
O'Leary submitted written testimony in favor of the bill that expressed guarded support of current DMCA provisions. "Where these sites are legitimate and make good faith efforts to respond to our requests, this model works with varying degrees of effectiveness," O'Leary wrote. "It does not, however, always work quickly, and it is not perfect, but it works."
Web-related businesses
An analysis in the information technology magazine eWeek stated, "The language of SOPA is so broad, the rules so unconnected to the reality of Internet technology and the penalties so disconnected from the alleged crimes that this bill could effectively kill e-commerce or even normal Internet use. The bill also has grave implications for existing U.S., foreign and international laws and is sure to spend decades in court challenges."
Art Bordsky of advocacy group Public Knowledge similarly stated, "The definitions written in the bill are so broad that any US consumer who uses a website overseas immediately gives the US jurisdiction the power to potentially take action against it."
On October 28, 2011, the EFF called the bill a "massive piece of job-killing Internet regulation," and said, "This bill cannot be fixed; it must be killed."
Gary Shapiro, CEO of the Consumer Electronics Association, spoke out strongly against the bill, stating, "The bill attempts a radical restructuring of the laws governing the Internet," and that "It would undo the legal safe harbors that have allowed a world-leading Internet industry to flourish over the last decade. It would expose legitimate American businesses and innovators to broad and open-ended liability. The result will be more lawsuits, decreased venture capital investment, and fewer new jobs."
Lukas Biewald, founder of CrowdFlower, stated, "It'll have a stifling effect on venture capital... No one would invest because of the legal liability."
Booz & Company on November 16 published a Google-funded study finding that almost all of the 200 venture capitalists and angel investors interviewed would stop funding digital media intermediaries if the bill became law. More than 80 percent said they would rather invest in a risky, weak economy with the current laws than a strong economy with the proposed law in effect. If legal ambiguities were removed and good faith provisions in place, investing would increase by nearly 115 percent.
As reported by David Carr of The New York Times in an article critical of SOPA and PIPA, Google, Facebook, Twitter and other companies sent a joint letter to Congress, stating "We support the bills’ stated goals – providing additional enforcement tools to combat foreign ‘rogue’ Web sites that are dedicated to copyright infringement or counterfeiting. However, the bills as drafted would expose law-abiding U.S. Internet and technology companies to new uncertain liabilities, private rights of action and technology mandates that would require monitoring of Web sites.” Smith responded, saying, the article "unfairly criticizes the Stop Online Piracy Act," and, "does not point to any language in the bill to back up the claims. SOPA targets only foreign Web sites that are primarily dedicated to illegal and infringing activity. Domestic Web sites, like blogs, are not covered by this legislation." Smith also said that Carr incorrectly framed the debate as between the entertainment industry and high-tech companies, noting support by more than "120 groups and associations across diverse industries, including the United States Chamber of Commerce."
Users uploading illegal content
Lateef Mtima, director of the Institute for Intellectual Property and Social Justice at Howard University School of Law, expressed concern that users who upload copyrighted content to sites could potentially be held criminally liable themselves, saying, "Perhaps the most dangerous aspect of the bill is that the conduct it would criminalize is so poorly defined. While on its face the bill seems to attempt to distinguish between commercial and non-commercial conduct, purportedly criminalizing the former and permitting the latter, in actuality the bill not only fails to accomplish this but, because of its lack of concrete definitions, it potentially criminalizes conduct that is currently permitted under the law."
An aide to Rep. Smith said, "This bill does not make it a felony for a person to post a video on YouTube of their children singing to a copyrighted song. The bill specifically targets websites dedicated to illegal or infringing activity. Sites that host user content—like YouTube, Facebook, and Twitter—have nothing to be concerned about under this legislation."
In January 2012, bloggers claimed that Smith's own website had apparently used a copyright protected image without attributing it to the photographer who took it, with Time noting, "It doesn’t seem like a huge violation, but that’s the point; if SOPA passes, who knows how minor infractions like this will be handled."
Internal networks
A paper by the Center for Democracy and Technology claimed that the bill "targets an entire website even if only a small portion hosts or links to some infringing content."
According to A. M. Reilly of Industry Leaders Magazine, under SOPA, culpability for distributing copyright material is extended to those who aid the initial poster of the material. For companies that use virtual private networks (VPN) to create a network that appears to be internal but is spread across various offices and employees' homes, any of these offsite locations that initiate sharing of copyright material could put the entire VPN and hosting company at risk of violation.
Answering similar criticism in a CNET editorial, Recording Industry Association of America (RIAA) head Cary Sherman wrote, "Actually, it's quite the opposite. By focusing on specific sites rather than entire domains, action can be targeted against only the illegal subdomain or Internet protocol address rather than taking action against the entire domain."
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