How SOPA Will Change the Internet

James Plotkin

There has been an immense amount of talk lately regarding a bill known as the Stop Online Piracy Act (SOPA), which is currently making its way through U.S. Congress. SOPA has been fashioned as an effective response to rampant online piracy of copyrighted content by granting the attorney general broad and sweeping powers to attack infringing websites. The law also gives individual rights holders a new procedure complete with remedies they’ve never had access to before.

The bill is a companion to the equally controversial Protect IP Act, also being debated in Congress. These two bills signify a sharp change in the American copyright landscape, specifically as it pertains to the internet.

In addition to granting the attorney general the power to obtain a court order against a site that is either “committing or facilitating online piracy,” the proposed bill would also allow him or her to order third-party payment providers (such as Visa or PayPal) and online advertising networks to stop supporting and dealing with a site in question. Many sites that host audio and video content rely on advertising dollars to function. Similarly, any site that requires a paid membership would be completely ship-wrecked without online payment solutions such as PayPal or Google Checkout to process those fees.

Related: Collusion and Collision in Internet Censorship

Furthermore, under this law, the attorney general would be able to order that sites that are allegedly infringing on copyright laws be de-indexed from search engines. Many have likened this rather extreme measure to the internet censorship protocols, known colloquially as the "Great Firewall,” enacted by the Chinese government. While this may be an extreme appraisal, this measure brings up significant free-speech issues.

As mentioned above, SOPA gives powerful enforcement tools not only to the attorney general, but also to regular rights holders. If rights holders (such as movie studios or music publishers) believe a site is infringing their copyright, they must undertake a two-step process: First, they must contact payment providers and advertising networks doing business with the site in question. Once the complaint has been forwarded, the accused site is to cease its services in relation to the rights holder and forward the complaint to the owner of its domain. At that point, the site owner must respond, explaining how the site’s activities are not infringing copyright (e.g., the material is legally licensed, falls under “fair use,” etc.). If no defence is given, the rights holder may apply to a court for a limited injunction on the accused website.

SOPA tries to incentivize the voluntary compliance of advertisement and payment networks by making them immune to liability if they "squeal" on an instance of copyright piracy or trademark infringement.

Finally, the bill expands the penalties related to certain activities, including video streaming and various instances of counterfeiting. For example, SOPA provides for criminal sanctions against those who infringe by streaming copyrighted content. While he may not have wanted to be the poster boy for the anti-SOPA plight, many point out that Justin Bieber could very well have been put in jail for streaming videos of himself singing copyright-protected songs (without authorization). Another example could be an Olympic athlete who puts a video of his or her ski run or dive online for fans to view. Surely the intention of Congress could not stretch to such benign and (seemingly) morally justifiable actions?

Supporters of the bill tout it as the weapon American rights holders need in order to effectively police their IP rights. Supporting organizations include the obvious players, such as the Recording Industry Association of America and the Motion Picture Association of America, as well as large commercial entities like Nike, Ford, and Pfizer. SOPA would presumably make it easier for those large entities to enforce their trademark rights, adding to the ICANN Uniform Dispute Resolution Policy. While the latter only allows rights holders to go after infringing domain names, SOPA would allow them to pursue websites that make use of their trademarks anywhere on the site.

Detractors contend that the bill is an outrage and must be killed immediately. Representatives on both sides of the House have been outspoken critics, among them Rep. Nancy Pelosi and current Republican nominee for presidential candidacy Rep. Ron Paul. In Rep. Paul’s own words, SOPA will likely result in “an explosion of innovation-killing lawsuits and litigation.”

Some even question the efficacy of the bill. Sure, the attorney general may ban sites from the American Web, but the domain-name system can be manipulated in creative ways to circumvent this roadblock. As we witnessed during 2011’s Arab Spring, people can use mirror and proxy servers to get around national quarantines of the internet.

Related: A Common Approach to Intellectual Property

The advent of these new measures also brings into question the utility of the Digital Millennium Copyright Act’s (DMCA) notice and take-down system. If SOPA passes, it will create a far stronger mechanism than what the DMCA currently offers. Unfortunately, the DMCA notice and take-down system represents a significantly more balanced approach to dealing with piracy on the internet than the potentially ex parte (legal jargon meaning a hearing absent one of the parties) process put in place by SOPA. SOPA allows actions to be taken against the infringing site itself if the attorney general is unable to locate the owner of the site. This is highly significant, as one of the fundamental principles of natural justice is the maxim, “Audi alterem partem” (“Hear the other side”). This principle prevents a judgment from being rendered against someone who is not present or who has not had the opportunity to submit an argument in his or her own favour. SOPA (and Protect IP) allow for an action in rem (against the property itself).

It remains to be seen what type of effect SOPA and Protect IP will have on the internet landscape in the United States, or whether any other countries will follow suit with national legislation of their own in the same vein. As the world’s largest exporter of intellectual property, the United States has a vested interest in seeing IP laws around the world tighten. Here in Canada, our Copyright Modernization Act, which is currently making its way through Parliament, seems to already reflect that exported interest. The last thing Canada needs right now is “SOPA North.” However, since “Stephen” and “Barack” are such good buddies these days, who knows what could happen.