In several recent postings (here and here, for example) I called on all interested persons to come to the Internet’s defense against a spate of truly dreadful bills now making their way through Congress (the “Protect IP Act” and SOPA, the “Stop Online Piracy Act”). Larry Downes, always a thoughtful voice on tech matters, has an interesting piece in Forbes about the rather astonishing outcry that the bills have engendered. As someone who’s been doing Internet law for almost 20 years, I can’t remember any issue galvanizing public opinion in quite this way since the 1996 “Communications Decency Act” [outlawing "indecency" on the Net -- good luck with that!]. It’s quite gratifying, and something of a turning point, I think, in terms of the politics of the Net, and it’s gratifying to have played a small part to help generate the current outcry about these truly egregious bills (Mark Lemley, Dave Levine, and I having written a Law Professors’ Letter in opposition that generated over 100 signatures — and, according to the counter at Scribd.com, has been downloaded over 50,000 times already . . . ) I’m pretty gratified; once I saw the full-page ad in the Times a few weeks ago, signed by Google, eBay, Yahoo, Facebook, AOL, Twitter, Zynga, and several other tech giants, stating their opposition to these bills, I began think we might actually have a good chance of winning this one and saving — seriously — the Internet. I think the copyright interests may look back at this battle and realize that they overstepped; galvanizing Google, Facebook, Twitter, eBay, . . . into action is not going to help their cause much, I don’t think.
[And if you're not aware of how serious a threat these bills are to the Internet's technical, commercial, and economic infrastructure, consider this. Under SOPA, intellectual property rights holders can proceed vigilante-style against any allegedly infringing foreign websites, without the need for any court hearing or judicial intervention or oversight whatsoever. SOPA establishes a "notice and take-down" scheme under which an IP rights holder need only notify banks, credit card companies, Internet advertisers, and Internet search engine operators, in writing, that he/she has a “good faith belief” that an identified Internet site is “primarily designed or operated for the purpose of” infringement. The recipients of the notice will then have 5 days to cease doing any business whatsoever with the specified site, taking all “technically feasible” steps to prevent it “from completing payment transactions” with customers, from “making advertisements available” to the site, and from “being served as a direct hypertext link” from within any site under the recipient’s control. And all of this based on nothing more than a written notice delivered by the rights holder, which no neutral third party has even looked at, let alone adjudicated on the merits. If that's "law," I'm the Pope. Imagine if we had that in the non-virtual world:
A guy walks into a bank. He hands the teller a note. Sweat begins beading on the teller's forehead, and he takes the note to the bank VP. The note reads: "Jack Johnson's been stealing my hogs. Freeze his bank account." And the bank has five days to comply!!
It's not law - it's a kind of thuggery, and it will make the Net a much, much less vibrant place (and a teeny bit safer for copyright holders - if that) if it is enacted.
UPDATE: Marty Schwimmer, an experienced copyright and trademark attorney, sent me the following revision to my "guy walks into a bank" description of SOPA, which, in the interest of airing other views, I present below. Obviously, we disagree - I still believe a law permitting private parties to create liability for other persons based on nothing more than their say so and a "notice" is a form of lawlessness and thuggery - but here's Schwimmer's take on it:
I have been a trademark and copyright attorney for 24 years; have utilized the DMCA many times and have co-authored an article for the Trademark Reporter analyzing the DMCA in the context of whether notice-and-takedown should be extended to trademarks (101 TMR no 1 at page 14). I have defended US IP owners against infringements by non-US entities. If I wanted to use a bank analogy to fairly represent the majority of instances in which notice-and-takedown would be utilized, it would read something like this:
“Someone using the name of Jack Johnson has been stealing my hogs. I can’t verify his true name or address because there is no enforcement of accurate whois information. I will never recover damages or be able to enforce injunctive relief against him. In fact, I may have already received a permanent injunction(s) against this very guy, previously, and I wouldn’t even know for certain. Furthermore, any service provider that he (or she or they) rely upon in their home country, will ignore any US court order I obtain. And while I will explore suing [them] in their country, legal and political considerations make that a low probability option.
And so, as you are “Jack’’s” payment processor receiving approximately 3 (or more) % of the gross revenue from his stolen hogs, and because you have some form of accurate contact data (and bank details) for this guy, I am putting you on actual notice of a specific infringement (and providing you the information that you need to assess my claim). If you don’t comply with my request, then, in order to take action against you, go to Court, prove the direct infringement against “Jack,” and then prove your intermediate liability (which among other things would involve proving that you were more than a passive bank receiving deposit, but a payment process having access to the details of all transactions) (see Gucci v Frontline). Given the resources you have to defend this as a financial services provider (see Gucci v Curveal), I doubt that there are beads of sweat on your forehead as you read this.”
I think that your note to the bank scans better, but I think that my version is a more accurate reflection of the motives of the IP holder and the circumstances under which they would attempt to utilize notice-and-takedown.
Giant Frog says:
These guys keep updated lists of illegally seized domains and their new addresses:
December 4, 2011, 7:18 pmDw says:
It’s not law — it’s a kind of thuggery,
I agree. But isn’t the law on detention of suspected terrorists already like this?
December 4, 2011, 8:00 pm4C says:
Leahy and Hatch were bought by the RIAA and Hollywood many years ago. Those industries have always dreamed of redefining the Internet as ‘their private priviledged distribution channel’. They got stopped over cassettes, they got stopped over VCR’s, and hopefully they’ll be stopped now, too.
Incidently, I have software that will ‘rip’ any DVD of any kind to hard disk ( or a blank removable disk ) devoid of any and all copy protection, etc. Trouble is – the crap Hollywood puts out isn’t even worth a $1 / night rental to copy it.
December 4, 2011, 8:00 pmDebrah says:
This is such a significant issue and will continue to be for the duration, no doubt.
If those bills actually become law, get used to constipated cyberspace!
Similar to the calamitous results of stifling freedom of speech, directing every move on the internet will result, as Post opines, in a “much less vibrant place”.
Straitjacketing cyber land is evil!
December 4, 2011, 8:11 pmZiz says:
What will happen if people turn SOPA against big companies? If it passes, it will only be a matter of time (and not much) before people start trying to shut down the entertainment business itself with notices.
December 4, 2011, 9:10 pm4C says:
I’d be willing to bet that I have a ‘good faith basis’ to believe that every government website has SOME infringing content on it SOMEWHERE….
So do Walmart, Sears, Boeing, Northrop, IBM, etc …..
Hmmmm…….
December 4, 2011, 9:31 pmJoe says:
A side effect of something like this could be the internationalization of aspects of the web (domain registration) and a significant lessening of US control of the internet. The financial aspects are harder to envisage but could be worked around. You’d have to get more complex to work around the credit side of things (accepting overseas wouldn’t be a problem, but issuers would have trouble).
It would also provide a good deal of solace/rationalization to authoritarian regimes.
December 4, 2011, 9:44 pmZiz says:
You need more than “some,” you need “primarily.” But that’s not really a problem. There are plenty of people out there who aren’t worried about the “good faith basis” requirement. And they’re probably not particularly interested in using their real names on their notices.
December 4, 2011, 10:06 pmconrad says:
Prof Post: From my read of the bill, it looks like the accused site gets to make a “counter notification,” which basically cancels out all legal effect of the “notification” to the bank and forces the rightsholder to either give up or go to court.
So, this is a lot like civil suits: complaint, followed by default judgment, unless the other guy answers, in which case, due process.
I didn’t see you describe counter-notification in your post. It seems to be an important part of the bill. Did I read the bill wrong?
December 4, 2011, 10:07 pmYant says:
If these pass I suspect Anon and similar groups will waste no time in making sure many big business websites contain primarily infringing content. Then, they’ll send the letters.
Of course, to send the letters they’d need to be a right holder, so they’d have to post at least one thing they had the rights to.
December 4, 2011, 10:30 pmRandy says:
Conrad: “So, this is a lot like civil suits: complaint, followed by default judgment, unless the other guy answers, in which case, due process.”
Not really. In civil suits, you have to file everything through a court. In this legislation, there is no referee — just back and forth between accuser and accusee.
Are all website owners sophisticated enough to know how to respond properly and timely? Will they have proper legal counsel to respond within five days? That’s a pretty tight deadline — even courts give you a month or so to respond.
And if you have a barrage of these letters, which is quite likely, you can easily be inundated with these requests, lose track of them, spend a fortune responding to them, and then still have to defend yourself in court.
The bill is obviously designed to shut down websites that the big companies don’t like.
December 5, 2011, 12:22 amMLS says:
I am not writing this in defense of the bill as now pending before the House Judiciary Committee. I am writing this because in my view Mr. Post seems inclined to raise a hue and cry than to actually read what the bill provides and proffer an analysis of its provisions.
The reference to “notice and take-down” is inaccurate because there is no “take-down” provision, only “notice” and “counter notice” provisions. “Notice and take-down” may be accurate when used in conjunction with the DMCA, but certainly not here.
Yes, a notice is required, but to be legally sufficient the notice must contain far, far more than Mr. Post’s almost flippant characterization. In fact, he appears to confuse what must be contained in a counter-notice with what must be contained in a notice. See: H.R. 3261, Sections 103(b)(4) and 103(b)(5).
Yes, a notice is served upon either a payment network provider, internet advertising services provider, or both (if applicable). Once served they are given a set time within which to take certain actions unless a counter-notice is served by the website owner. It should be mentioned that the requirements for a legally sufficient couter-notice are significantly more lenient than those of the original notice.
Turning now to the heart of the matter, what do a notice and counter-notice, or no counter-notice, or a payment or advertising services provider doing absolutely nothing actually do? Nothing, except that it sets the stage for a rights holder, depending upon the circumstances, to initiate an in personam or in rem lawsuit. Can the rights holder proceed against payment and/or advertising service providers? No. Suits must be brought against either the site’s registrar, the site’s operator, the site’s owner, or the site itself, and in such suits the defendant(s) is/are entitled to the panoply of defenses associated with copyright/trademark litigation. No right of action may be pursued against the payment and advertising service providers.
In essence, Section 103 is jurisdictional in nature and little else. Perhaps its most important provision is the addition of a private right to proceed in rem.
Now, I will be the first to admit that the provisions associated with in personam and in rem actions are not as clearly stated as I would like, but it is simply inaccurate to suggest that Section 103 attempts to expand US jurisdictional boundaries outside of the US, and is likewise inaccurate to suggest that payment and service providers may find themselves on the receiving end of a lawsuit.
Quite frankly, it rankles me that so many within academic and other circles simply ignore the substantive provisions contained in the pending bill, instead making broad and sweeping generalizations that simply do not stand up to scrutiny when examined in light of the bill’s provisions. I well understand that our political process is heavily influenced by the use of buzz words and phrases, but to apply these words and phrases haphazardly and misleadingly is disingeneous at best, and promoting a falsity at worst.
December 5, 2011, 1:22 amconrad says:
I totally get how 5 days is not much time to write a counter notification and how some parties might not be sophisticated enough to do so. But a fair summary of the bill should really include mention of the counter-notification provision, don’t you think? Especially if Prof. Post is going to talk about takedown happening “based on nothing more than a written notice delivered by the rights holder, which no neutral third party has even looked at, let alone adjudicated on the merits.” More like: based on a written notice, and the lack of the rights holder writing a one-paragraph e-mail in response saying “No I didn’t, and here’s my name and address.”
December 5, 2011, 7:35 amTatil says:
What makes you think, a simple statement like that is sufficient? Are you sure website owner would not have to get lawyers to put together a sufficient and specific statement for each allegation? Who is under obligation to notify the website owner? Who does the owner send his counter notices to? To every people he does business with one by one, just in case they have received a notification? Or does he get asked for it by banks, search engines, advertising networks etc. before his 5 day clock starts in each case? What happens if the owner is on vacation?
December 5, 2011, 12:05 pmTatil says:
The registrar or the web hosting company has no upside in defending itself against allegations that a third party has violated copyright. It is much easier for them to comply, unless the claim is made against a big customer. Internet is supposed to make it easier for individuals to disseminate information. Doesn’t these types of laws make the it a domain controlled primarily by the powerful and those with deep pockets?
December 5, 2011, 12:11 pmRandolph says:
I’m no expert on this, but why even have a five (!!!) day auto-take down if it’s really that simple to dispute? Or at least why not require the complaint to include language explaining how to dispute?
The real charge isn’t the specifics of the complaint-counter process, it’s that media companies (or anyone with sufficient resources) can shut down web sites with fewer legal and financial resources. I’m not seeing anything that basic point that Post is making.
December 5, 2011, 12:35 pmconrad says:
Hi Tatil:
Most of your questions are answered by the bill, which you can read at http://www.opencongress.org/bill/112-h3261/text?version=ih&nid=t0:ih:187. The counter notification has to have a signature, a consent to U.S. jurisdiction, contact information, and “A statement under penalty of perjury that the owner or operator, or registrant, has a good faith belief that it does not meet the criteria of an Internet site dedicated to theft of U.S. property as set forth under this section.” But that’s all; not facts to support the statement, just a statement. Seems like that could all be done with a form letter, no need to hire lawyers.
The bill also says that the bank has to notify the customer, so that gives the customer a chance to respond. The customer responds to the bank.
There is no provision to expand the 5 days if the customer is on vacation, so that probably would be a problem for some people.
I think the point of all this is to make the site owner provide contact info, so that he can then be sued.
December 5, 2011, 1:39 pmJustin Levine says:
A question: The entire works of George Orwell are in the public domain in many countries overseas. But in the U.S., they are still under copyright. Would sites such as http://www.george-orwell.org which freely post Orwell’s complete body of works be considered an ‘Internet site is dedicated to theft of U.S. property’ as defined under section 103 of bill?
If so, would the bill’s defenders/apologists support blocking this site in the U.S. if the relevant party demanded it?
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