On Suspending SOPA and Piping PIPA Down

by Mekhala Chaubal on February 17, 2012

in Analyses

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This is the re-posting of a comment first appeared on IPosgoode at the following url:

http://www.iposgoode.ca/2012/02/on-suspending-sopa-and-piping-pipa-down-2/

If the past month is any indication at all, 2012 is going to be an eventful year for intellectual property legislation, at least in the US and Canada. The controversy over the twin anti-digital piracy bills— the Stop Online Piracy Act (SOPA), and the Protect Intellectual Property Act (PIPA)— has gained much attention, particularly because their potential effects seemed to have entrenched themselves into the global public consciousness, fuelling the largest online strike in history, and ultimately leading to the indefinite tabling of the two bills. This post explores the relevant issues that led to the build up of the mass public action that led to ‘the week that killed SOPA,’ and also considers some interesting issues that have been brought to the fore by the bills, even in their currently inactive state.

While each of the two bills were introduced separately— SOPA on October 26, 2011 and PIPA on May 12, 2011— it was their combined effect with respect to copyright and trademark protection within the US that has come to be touted as stifling much more than just online piracy. Critics have been vocal about the threat of the bills, saying that the proposed legislative changes meant to curb infringement are too broad, and too harsh, citing that freedom of expression and online innovation are being harmed in the process.

Supporters of the bills, on the other hand, have said that the protection of intellectual property is an imperative, pointedly emphasizing that the purpose of the bills was to target foreign websites that were ‘primarily engaging’ in illegal activity, also noting that those websites which were conducting their businesses legally would not be subject to the enforcement legislation introduced in the bills. American guilds associated with Hollywood have been adamant of their support of SOPA. Citing SOPA to be a ‘proactive measure,’ these organizations have insisted that the measures introduced in the bill are designed to protect both intangible rights, and the ‘real jobs’ linked to these rights. In their view, it was SOPA’s protection of “ the industry’s ability to foster creativity, provide opportunities, and ensure good jobs,” that was worthy of support and laudability.

The major points of contention between the two sides seem to revolve chiefly around the degree of protection deemed necessary, the purported effects of allowing that protection to be governmentally mandated, and the liability of users and hosts of the infringing content. The proposed requirement that ISPs block content that directed, linked to, or facilitated infringement in offshore domains did not sit well with Google, Wikipedia and Reddit (among others), i.e. websites built on the linking and exchange of information. The concern here was more than just policy-related, as the economic costs of litigation over one or a few links deemed ‘rogue’ might be seen as too prohibitive for small buisnesses. However, proponents of the bills are quick to point out that their main aim has always been to target only the biggest offenders, perhaps suggesting that the harsh language of the legislation was in proportion to the magnitude of the pirating that was to be combated, and that the vehement public opposition to the bills might actually be a form of overreaction. At the same time however, the White House’s rejection of the bills, because of their potential to limit innovation and promote censorship, while maintaining that US IP law does need an overhaul with respect to anti-piracy measures, sent an undeniably powerful message to SOPA’s proponents. So also did its condemnation by Sir Tim Berns-Lee, one of the creators of the World Wide Web, whose main objection was the denigration of the fundamental purpose of his invention.

While the media predominantly provided polarized coverage on the issue, several alternative and noteworthy viewpoints on the matter provide insightful analyses of the key issues at play. While the protests and debates led to the temporary but indefinite shelving of both bills on January 20, 2012, the questions raised by both sides have yet to find a satisfactory resolution. Lamar Smith, the Republican Senator who originally introduced SOPA into Congress, maintained his stance and that the bill was intended to protect all forms of intellectual property in the US, and not merely online piracy. He stated that the ‘illegal theft’ of tangibles was just as relevant to SOPA’s provisions, and that the battle was more than just between ‘the entertainment industry and high-tech companies.’

Another major voice in the pro-SOPA camp has been that of Floyd Abrams, whose detailed letter to Senator Smith outlined the constitutionality of the legislation. The letter begins by stressing that while the protection of copyrightable material has been an essential aim of US law, the country’s Constitution also aims at a balance between “protections for speakers and creators, in a First Amendment context, while stimulating future creativity.” Professor Abrams is clear however, that while free speech must be given importance, this right cannot exist in a digital vacuum when it comes to the Internet. Even the Internet is subject to rules of copyrightand by extension, of the consequences of its infringement.

Danah boyd’s comparison of two aspects of internet piracy— as a competitive and as a cultural issue— also highlighted the confusion that seemed embedded in the debate from the start; whether SOPA and PIPA were actually preventing piracy, or stifling the participatory culture of the Internet. Further, Julian Sanchez’s questioning of whether SOPA, if enacted, could actually help promote the US economy speaks to the core function of US copyright legislation— the incentivization of the production of creative works. Sanchez ultimately asks for a ‘real and quantifiable link’ between the two, claiming that until such a connection is found, strong legislation such as SOPA that ‘reports the death of the industry’ might not be in anyone’s best interest.

Finally, Professor Jason Mazzone contends that SOPA’s passage would only have increased a trend that began long before the debate over the bill— that of ‘privatized lawmaking,’ where copyright owners use contractual provisions to extend their rights over areas where legislation does not give them access. Mazzone contends that SOPA, with its emphasis on harsher enforcement, could have given copyright owners the freedom to ‘disrupt sites that do not infringe a copyright, interfere with fair uses of copyrighted works, and take other steps that evade the limits that the Copyright Act…’ something that opponents were very keen to avoid right from the start.

Senator Smith has already announced his intention push for SOPA’s passage in February 2012, when the next round of talks on the bill is to resume. There have been amendments made to the latest version, such as the removal of the provision that would have required service providers to block infringing websites from subscribers through court orders. Skepticism is still rife however, with critics emphasizing that simply tinkering around with the edges is unacceptable. Whether SOPA 2.0 will survive its troubled birth is an issue that will no doubt remain on many minds in the days to come.

Mekhala Chaubal is a JD candidate at Osgoode Hall Law School.

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