The US SOPA and PIPA − a European perspective

Abstract

According to US House Judiciary Chairman Lamar Smith, ‘the theft of American intellectual property costs the American economy over $100 billion annually … and thousands of jobs’. Both houses of the US congress have been working on corresponding bills intending to give the US government and copyright holders more effective tools to curb access to so-called rogue websites that disseminate copyright-infringing content, especially those registered outside the US. Following a wake of protest, the Protect IP Act (PIPA) by the Senate and its counterpart in the House of Representatives, the Stop Online Piracy Act (SOPA), were postponed ‘until there is wider agreement on a solution’. This paper examines how the bills tried to strengthen the ability of US law enforcement and copyright holders to fight online trafficking in copyrighted intellectual property and counterfeit goods. It will also outline the recent developments and assess the implications that the bills have for freedom of speech online and cybersecurity, not only in the US but also in Europe.

Keywords:

• IPR enforcement
• content blocking
• Internet policy

Acknowledgement

The research of Sandra Schmitz is funded by the National Research Fund of Luxembourg (fnr.lu).

Notes

H.R. 3261, 112th Congress (2011), available online at http://www.gpo.gov/fdsys/pkg/BILLS-112hr3261ih/pdf/BILLS-112hr3261ih.pdf. SOPA was initially entitled ‘the Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation Act’ (E-PARASITE Act).

Barnett, Emma. 2012. Wikipedia founder Jimmy Wales defends SOPA protest blackout. The Telegraph, 17 January 2012. http://www.telegraph.co.uk/technology/wikipedia/9020053/Wikipedia-founder-Jimmy-Wales-defends-SOPA-protest-blackout.html (accessed 12 July 2012).

S.968, 112th Congress (2011), available online at http://www.gpo.gov/fdsys/pkg/BILLS-112s968rs/pdf/BILLS-112s968rs.pdf.

The bills are supported by predominately media companies and associations such as the Motion Picture Association of America and the Recording Industry Association as well as such that have an interest in banning counterfeit goods entering the US market like the NBA, NFL or MLB.

Executive Office of the President of the United States, US Intellectual Property Enforcement Coordinator, ‘Joint Strategic Plan on Intellectual Property Enforcement’. http://www.whitehouse.gov/sites/default/files/omb/assets/intellectualproperty/intellectualproperty_strategic_plan.pdf (accessed 12 July 2012).

Ibid., 14.

Pepitone, Julianne. 2012. SOPA explained: what it is and why it matters. CNN.com, 17 January 2012. http://money.cnn.com/2012/01/17/technology/sopa_explained/ (accessed 12 July 2012).

For a summary of the events leading to WikiLeaks moving its content to Sweden and the denial of service by payment services see Benkler, Yochai. 2011. WikiLeaks and the PROTECT-IP Act: a new public-private threat to the Internet commons. Daedalus 140, no. 4: 156 et seq.

Ibid., 161.

The White House announced that it would not support a bill that reduces free speech and implies cybersecurity risks or which undermines the dynamic, innovative global net. See Espinel, Victoria, Aneesh Chopra, and Howard Schmidt. 2012. Combating online piracy while protecting an open and innovative Internet: official White House response to stop the E-PARASITE Act. https://wwws.whitehouse.gov/petition-tool/response/combating-online-piracy-while-protecting-open-and-innovative-internet (accessed 12 July 2012).

Committee on the Judiciary. 2012. Statement from Chairman Smith on Senate delay of vote on PROTECT IP Act. //http://judiciary.house.gov/news/01202012.html?scp=2&sq=lamar smith&st=cse (accessed 12 July 2012).

The notion of ‘nondomestic domain name’ refers to a domain name for which the domain name registry that issued the domain name and operates the relevant top level domain, and the registrar for the domain name, are located outside the US (§2 (10) of PIPA).

Upon commencing an action, the qualifying plaintiff shall also provide notice to financial transaction providers and Internet advertising services as they may be required to take action (§ 3(d)). In contrast to an action commenced by the AG, there will be no notification of operators of non-authoritative domain names or information location tool providers.

It has been assumed that all websites that do not actively block US IP addresses would be US directed in the sense of §101(23), see Zittrain, Jonathan, Albert, Kendra, Solow-Niederman, Alicia. 2011. A close look at SOPA. The future of the Internet. http://futureoftheinternet.org/reading-sopa (accessed 12 July 2012).

Ibid.

This provision is not limited to foreign websites but applies to all websites.

Unlike the action available to the AG and analogous to the DMCA, this private remedy foresees a counter notification by the alleged infringer to the payment or advertising service provider, after which the provider can decide whether or not to comply, see §103(b)(5).

Streaming is a criminal offence if at least ten public performances took place by means of digital transmission of one or more copyrighted works during a 180-day period and having a total retail value of more than $2500 (§ 201(b)).

For example, the Secretary of State and of Commerce will be required to provide adequate resources are available at US diplomatic missions or embassies to ensure ‘aggressive support for enforcement action against violation of intellectual property rights’ (§205).

Barnett, Emma. 2012. Wikipedia founder Jimmy Wales defends SOPA protest blackout. The Telegraph, 17 January 2012. http://www.telegraph.co.uk/technology/wikipedia/9020053/Wikipedia-founder-Jimmy-Wales-defends-SOPA-protest-blackout.html (accessed 12 July 2012).

The Electronic Frontier Federation called the proposal ‘disastrous’ (see McSherry, Corynne. 2011. Disastrous IP legislation is back – and it's worse than ever. Electronic Frontier Foundation. https://www.eff.org/deeplinks/2011/10/disastrous-ip-legislation-back-%E2%80%93-and-it%E2%80%99s-worse-ever (accessed 12 July 2012)) and runs a campaign to ‘Stop the Internet blacklist bills – strike against censorship’ in response to SOPA and PIPA, see https://action.eff.org/o/9042/p/dia/action/public/?action_KEY=8173.

Confer the Free Software Foundation's initiative to stop the bills at http://www.fsf.org/blogs/community/stop-the-internet-blacklist-legislation.

AOL Inc., eBay Inc., Facebook Inc., LinkedIn C. Google Inc., Mozilla Corp., Twitter Inc., Yahoo! Inc., and Zynga Game Network. 2011. Open letter to key members of the U.S. Senate and House of Representatives. http://politechbot.com/docs/sopa.google.facebook.twitter.letter.111511.pdf (accessed 12 July 2012).

For a list of opponents of the bills as of December 2011, see http://www.net-coalition.com/wp-content/uploads/2011/12/Opposition_Dec16.pdf.

The DNS is the system that associates a domain name (such as: www.uni.lu) with the IP address (such as: 158.64.76.51) that ISPs use to route traffic to the web server that is operating the website in question. ISPs operate DNS servers that their customers' computers automatically call upon to identify which IP address corresponds to a particular DNS name. This is necessary in order to resolve the website in question.

Clayton, Richard. 2005. Anonymity and traceability in cyberspace: Technical Report no. 653. University of Cambridge, Computer Laboratory. http://www.cl.cam.ac.uk/techreports/UCAM-CL-TR-653.pdf (accessed 12 July 2012), 118.

Ibid.

Roberts, Hal, Zuckerman, Ethan, York, Jillian, Faris, Robert, and Palfrey, John. 2010. 2010 circumvention tool usage report. The Berkman Center for Internet & Society. http://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/2010_Circumvention_Tool_Usage_Report.pdf (accessed 12 July 2012).

Sellars, Andrew. 2011. Seized sites: the in rem forfeiture of copyright-infringing domain names. http://dx.doi.org/10.2139/ssrn.1835604 (accessed 12 July 2012).

Art. 1, Sec. 8, cl 8 of the US Constitution.

Art. 27.2 of the Universal Declaration of Human Rights states that: ‘Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. Art. 17.2 of the European Charter of Fundamental Rights states that intellectual property shall be protected.

Bonadio, Enrico. 2011. File sharing, copyright and freedom of speech. European Intellectual Property Review 33, no. 10: 619–631.

Park, Michael. 2008. Watchdog web site draws legal threats from Scientologists, Mormons. FoxNews.com, 19 June 2008. http://www.foxnews.com/story/0,2933,368315,00.html (accessed 12 July 2012).

The thesis that Internet service providers are more likely to remove alleged illegal material than to question complaints has been proven by an empirical research conducted by Oxford researchers in 2004 on Notice and Takedown procedures. The researchers investigated how Internet Service Providers make use of notice and take down by making a complaint by email to several Internet Service Providers about alleged copyright infringement on a website which they had previously uploaded and which contained perfectly legal material. See: Ahlert, Christian, Marsden, Chris, and Yung, Chester. 2004. How ‘liberty’ disappeared from cyberspace: the mystery shopper tests Internet content self-regulation. http://www.rootsecure.net/content/downloads/pdf/liberty_disappeared_from_cyberspace.pdf (accessed 12 July 2012).

Benkler, Yochai. 2011. WikiLeaks and the PROTECT-IP Act: a new public-private threat to the Internet commons. Daedalus 140, no. 4: 154–164, 162.

Sweney, Mark. 2011. WPP blacklists more than 2,000 US websites. The Guardian, 8 June 2011. http://www.guardian.co.uk/media/2011/jun/08/wpp-groupm-sir-martin-sorrell?INTCMP=SRCH (accessed 12 July 2012); see also Benkler, Yochai. 2011. WikiLeaks and the PROTECT-IP Act: a new public-private threat to the Internet commons. Daedalus 140, no. 4: 154–164 162.

Lenz v. Universal Music Corp, 572 F. Supp. 2d 1150 (N.D. Cal. 2008).

Leadsinger, Inc. v. BMG Music Publishing, 512 F. 3d 522 at 527 (9th Circuit 2008).

As presumed by Timm, Trevor. 2012. How PIPA and SOPA violate White House principles supporting free speech and innovation | electronic frontier foundation. Electronic Frontier Foundation. https://www.eff.org/deeplinks/2012/01/how-pipa-and-sopa-violate-white-house-principles-supporting-free-speech (accessed 12 July 2012)). The EFF even goes that far to argue that this includes organisations that are funded by the State Department to create circumvention software to help democratic activists get around authoritarian regimes' online censorship mechanisms. SOPA would then not only institute the same practices as these regimes, but would essentially outlaw the tools used by activists to circumvent censorship in countries like Iran and China.

OLG Hamburg, Decision of 14.03.2012 – 5 U 87/09, available online at http://tlmd.in/u/1356.

Cf. §102(b)(2) of SOPA. The same applies under PIPA.

See also Lemley, Mark, Levine, David, and Post, David. 2011. Don't break the Internet. Stanford Law Review Online 64: 34–38. http://www.stanfordlawreview.org/online/dont-break-internet (accessed 12 July 2012), 36.

CDT v Pappert, 337 F.Supp.2d, at 667. See also Allison, John, Baker, Brook, Bambauer, Derek, et al. 2011. Professors' letter in opposition to ‘Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011’. http://blogs.law.stanford.edu/newsfeed/files/2011/07/PROTECT-IP-letter-final.pdf (accessed 12 July 2012), 2 et seq.

Higgins, Parker, and Eckersley, Peter. 2011. An open letter from Internet engineers to the U.S. Congress. Electronic Frontier Foundation. https://www.eff.org/deeplinks/2011/12/internet-inventors-warn-against-sopa-and-pipa (accessed 12 July 2012).

See §102(c)(2)(A) of SOPA and § 3(d)(2)(A) of PIPA.

Lemley, Mark, Levine, David, and Post, David. 2011. Don't break the Internet. Stanford Law Review Online 64: 35. http://www.stanfordlawreview.org/online/dont-break-internet (accessed 12 July 2012).

Crocker, Steve, Dagon, David, Kaminsky, Dan, McPherson, Danny, and Vixie, Paul. 2011. Security and other technical concerns raised by the DNS filtering requirements in the PROTECT IP Bill. http://domainincite.com/docs/PROTECT-IP-Technical-Whitepaper-Final.pdf (accessed 12 July 2012).

Lemley, Mark, Levine, David, Post, David. 2011. Don't break the Internet. Stanford Law Review Online 64: 35. http://www.stanfordlawreview.org/online/dont-break-internet (accessed 12 July 2012).

DNSSEC is a new technology designed to add confidence and trust to the Internet. DNSSEC ensures that DNS data are not modified by anyone between the data provider and the consumer.

Espinel, Victoria, Chopra, Aneesh, and Schmidt, Howard. 2012. Combating online piracy while protecting an open and innovative Internet: official White House response to stop the E-PARASITE Act. https://wwws.whitehouse.gov/petition-tool/response/combating-online-piracy-while-protecting-open-and-innovative-internet (accessed 12 July 2012).

On 12 December 2011, Lamar Smith offered an amendment to SOPA, which does not only change the definition of a rogue website but also addresses some of the issues discussed before (Amendment in the Nature of a Substitute to H.R. 3261 offered by Mr. Smith of Texas, available online at http://judiciary.house.gov/hearings/pdf/HR%203261%20Managers%20Amendment.pdf). According to the amendment rogue websites are such that are primarily designed or operated for the purpose of, having only limited purpose or use other than, or marketed primarily for use in illegal activity; or being operated with the object of inducing such violations. This approach is much more narrow than the previous one which referred to websites whose owner or operator is committing or facilitating criminal violations. The amendment also proposes a kill switch that allows a provider to not carry out an order on a finding that it would ‘impair the security or integrity of the system’ (§102(d)(2)(B) and §2(a)(5) of H.R. 3261 Manager's Amendment). Therewith Smith responds to the fear that DNSSEC would be put at harm if there was a requirement to direct or redirect users to another site. Smith also seeks to clarify that any action against rogue sites refers to foreign sites that are beyond the reach of US law, meaning that they are located overseas, or are unreachable domestically and whose owner or operator is located outside the US (Cf. §101(a)(23) and §103(a)(1)(A)(ii) of H.R. 3261 Manager's Amendment).

Ibid.

Ley 2/2012, de 4 de marzo, de Economía Sostenible, available online at http://www.boe.es/boe/dias/2011/03/05/pdfs/BOE-A-2011-4117.pdf.

Rush, Dominic. 2012. US pressured Spain to implement online piracy law, leaked files shows. The Guardian, 5 January 2012. http://www.guardian.co.uk/technology/2012/jan/05/us-pressured-spain-online-piracy (accessed 12 July 2012).

For the full text of ACTA cf. http://register.consilium.europa.eu/pdf/en/11/st12/st12196.en11.pdf.

European Parliament. 2012. ACTA before the European Parliament. Press Release Ref. no. 20120217BKG38488 of 4 June 2012, http://www.europarl.europa.eu/news/en/pressroom/content/20120217BKG38488/ht (accessed 12 July 2012).

Cf. D'Erme, Roberto, Geiger, Christophe, Große Ruse-Khan, Henning, Heinze, Christian, Jaeger, Thomas, et al.. 2011. Opinion of European academics on anti-counterfeiting trade agreement. Journal of Intellectual Property, Information Technology and E-Commerce Law 2, no.1: 65–72.

European Digital Rights. 2012. ACTA fact sheet. http://www.edri.org/ACTAfactsheet (accessed 12 July 2012).

Only following the eighth round of negotiations, a draft version of ACTA has been released. For further information on the negotiations see Yu, Peter. 2011. Six secret (and now open) fears of ACTA. Southern Methodist University Law Review 64: 978 et seq. and 1011 et seq.

Yu, Peter. 2011. Six secret (and now open) fears of ACTA. Southern Methodist University Law Review 64: 1018.

Meller, Paul. 2010. Leaked ACTA draft reveals plans for Internet clampdown. Computerworld, 21 February 2010. http://computerworld.co.nz/news.nsf/news/leaked-acta-draft-treaty-reveals-plans-for-internet-clampdown (accessed 12 July 2012).

European Digital Rights. 2012. ACTA fact sheet. http://www.edri.org/ACTAfactsheet (accessed 12 July 2012).

See http://keepthewebopen.com/.

See European Commission. 2012. Proposal for a revision of the Directive on the enforcement of intellectual property rights (Directive 2004/48/EC). Available online at http://ec.europa.eu/governance/impact/planned_ia/docs/2011_markt_006_review_enforcement_directive_ipr_en.pdf.