Legal Analysis of SOPA / PROTECT-IP: No, It’s Not Censorship

The opposition to this year’s round of anti-piracy bills in Congress – the Stop Online Piracy Act (SOPA) in the House, and the PROTECT-IP Act in the Senate – centers around the idea that the intention of such a law would be to facilitate government censorship. Such opposition reached its peak last week, during online rallies organized by the Electronic Frontier Foundation and others, on what was called “American Censorship Day.”

At the request of this reporter, Hillel I. Parness, a practicing attorney and partner with the New York-based firm of Robins, Kaplan, Miller & Ciresi, and also adjunct member of the IP faculty at Columbia University School of Law, conducted a study of the current state of both bills this week. As Parness told ReadWriteWeb today, his analysis of the bills as they are currently written indicates that federal authorities would not be given the authority or the tools they would require to request a court order to take down any Web site (the bills concentrate on sites based abroad) based on content evaluation alone.

Furthermore, Parness’ legal analysis indicates, the SOPA bill’s specific reference to existing U.S. classifications for criminal conduct, which any request for a court order must meet, explicitly prevents the Attorney-General or his associates to seek the seizure of a foreign Web site based on language that site may contain, unless it appears to clearly violate copyright as determined by a judge. The classifications referenced are Title 18, United States Code, sections 2318 (counterfeit labeling or packaging), 2319 (criminal infringement of copyright), 2319A (unauthorized use of sound recordings or music videos), 2319B (unauthorized use of the performance of a movie recorded from the theatre), or 2320 (counterfeit goods or services). If the government cannot demonstrate to a judge that the intention of the Web site’s or Internet service’s proprietors is to willfully violate one or more of these specific instances of copyright law, then its request for a court order cannot be granted.

(According to Parness’ resume, prior to his joining the RKMC law firm, he represented various copyright holders in copyright infringement actions.)

SOPA actions would not be warrantless

“There’s a court involved here,” says Parness, in the course of pointing out Sec. 102(b)(5) of the SOPA bill, which reads as follows:

On application of the Attorney General following the commencement of an action under this section, the court may issue a temporary restraining order, a preliminary injunction, or an injunction, in accordance with rule 65 of the Federal Rules of Civil Procedure, against a registrant of a domain name used by the foreign infringing site or an owner or operator of the foreign infringing site or, in an action brought in rem under paragraph (2), against the foreign infringing site or a portion of such site, or the domain name used by such site, to cease and desist from undertaking any further activity as a foreign infringing site.

What SOPA’s principal sponsors appear to be doing, says Parness, is “clarifying the Copyright Act. Under the Copyright Act, there are a series of rights that go to the copyright owner. The two most important ones are reproduction and public performance… As the dissemination of music across the Internet has become more prevalent, there’s been more of a focus on the precise nature of those transmissions, and what rights they might implicate.”

Willful intent must be demonstrated

Section 201 of SOPA deals with punishment for willful streaming of copyrighted works. While critics of this part of the bill say it’s wrong to equate a downloaded copy with a stream, as Parness points out, “as far as the Copyright Act is concerned, it doesn’t matter if the right was a reproduction or a public performance right. It’s a single instance of copyright infringement.” His analysis indicates that the intent of the bill is to focus on specific instances where a foreign site gives clear reason to be suspected of activities that are already illegal from a U.S.-based site, and take such actions against them that are in keeping with what actions may be taken against domestic copyright violations.

Those activities must be willful, Parness’ analysis indicates, on the part of the site’s or service’s proprietors. Thus the suggestion by the bills’ opponents that the government could “go after YouTube,” as they’ve suggested, or any other service that happens to show an illicit video or track, is contra-indicated by the bills’ reference to existing law which sets the bar at willful activity. So such service providers would remain exempt from secondary liability for copyright infringement, so long as no evidence exists that these providers have no direct responsibility or input into their content.

Safe harbors would still apply

The safe harbor provisions created by the Digital Millennium Copyright Act in 1998 would still apply to Internet service providers, says Parness. He admitted that, in his opinion, the existence of this safe harbor may be perceived by the current bills’ sponsors as something of a roadblock. Thirteen years after DMCA’s passage, he says, “I think the proponents of the bill would say, what we’re looking at today is a very different kind of Internet. The fact that the courts have said that entities like YouTube can be passive when it comes to copyright infringement, and just wait for notices rather than having to take any affirmative action, is also frustrating to them.” Though court challenges remain to safe harbor, he adds, “This bill is reflective of the fact that there’s frustration in those quarters, and that they’re trying for a legislative solution while at the same time waiting for the courts to sort out the issues.”

SOPA, when passed, would amend existing copyright law. But the existing DMCA safe harbors, which are part of the same law, would remain untouched, says Parness. “I don’t see that the passage of SOPA would change the plain language of the DMCA. The DMCA structure is already there, and the case law interpreting it is already there.”

Safe harbor can be erased when it can be shown that a service turned a blind eye to certain so-called red flags – clear indicators that copyright violation by a willful party was taking place, and that the service willfully ignored it or pretended it wasn’t happening. The Viacom v. YouTube case established, as Parness describes it, “the idea that if a site is already aware of a red flag of infringement, it has to take action. That plays out in two ways. One is that there is a limit to the passivity that a site can engage in, and the other is also protection. But there already is protection in the DMCA under 512(g)(1).” There, a service cannot be held liable for any good-faith effort to remove materials that appear to be infringing, acting in response to what they believe to be red flags, even if they end up being non-infringing. Existing laws give ISPs and site proprietors incentive to take steps unilaterally, and Parness’ analysis indicates that SOPA’s similar incentives are neither new nor novel.

Yes, but is it censorship anyway?

Finally, I asked Parness whether, should the basis of these bills become law, the commencement of an action that ends up removing someone’s validly posted content, would have the same effect as censorship. Or put another way, is SOPA a censorship bill couched under a different guise?

“I don’t have the same concerns,” Parness responded. “I don’t view the approach here as anything that is groundbreaking in the macro sense. We have seen statutes, we have gotten used to statutes addressing the Internet, and the uniqueness of the Internet, that allow for various remedies, such as notice and takedown under the DMCA, which was new when it was implemented. The obligations of service providers to pre-qualify for safe harbors were also new. The criminal copyright statutes are not new. And the statutes that are listed in Sec. 102 of SOPA are all specifically enumerated, pre-existing criminal statutes.

“None of those statutes are new,” says the Columbia adjunct professor. “Therefore, if there was a risk of abuse, that risk has always been there. And I have confidence in the structure of our court system, that the prosecutors and the courts are held to certain standards that should not allow a statute such as this to be manipulated in that way.”

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