The Stop Online Piracy Act; Analysing the Law

This post aims to be an objective analysis of SOPA, as they stand at the time of writing. I will attempt to update this as and if the law progress. Obviously I have no familiarity with US lawmaking, which may be particularly evident in this post.

The Stop Online Piracy Act (SOPA) and Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (Protect-IP Act or PIPA) were introduced into the US House of Representatives and Senate respectively in the summer of 2011. They cover substantially the same material, and only SOPA will be analysed here. As their titles suggest, they are both aimed at reducing or restricting the online infringement of copyright, by targeting certain websites both directly, indirectly and through their financing.

This article will focus on the “Manager’s Amendment” to the Act, put forward by Congressman Lamar Smith, who introduced the legislation. More detail on the progress on the Act can be found on the relevant Committee’s website.

S102 – the Attorney General

The first set of provisions are contained in s102 of the Act (the 4th section, due to the numbering system used). This is aimed at “foreign infringing sites”, which are defined (rather circuitously in s102(a), which requires s101(1),(3)-(8), (10), (12), (16) and (23)) to be a website that loosely aimed at or connected to the US, but which has a domain name, or if no domain name, IP address, whose controlling authority is not under US jurisdiction. This would seem to exclude all .com, .org and .net websites, among others. In addition, the sites must be potentially liable, were they to be under US jurisdiction, for various copyright and related offences.

This section authorises the US Attorney General (AG) to bring a case either at the owners or operators of such a website, or of its domain name. If those people cannot be found or are not within the US’s jurisdiction, the case can be brought against the site and domain name directly. If successful, the AG can obtain an injunction or similar order, prohibiting from remaining a “foreign infringing site.” Understandably, this is unlikely to have much of an effect, so s102(c) goes on to provide further powers, available with permission of a court.

Targeting Service Providers

These powers allow the AG to serve an order to Domain Name Server providers, Internet Search Engines, Payment Network Providers and Internet Advertising Services, forcing them to take reasonable steps to withdraw their service from the site and its operators, at least as far as US end users are concerned. This would include altering the DNS databases for US users, removing search results, suspending payments (to or from US accounts or individuals only) and withdrawing adverts respectively. If a company or organisation served with such an order fails to comply, the AG can bring a case forcing them to.

Anti-Circumvention Measure

In addition to the above powers, s102 grants the AG the power to bring a case against anyone who “knowingly and wilfully”  provides or offers to provide anything designed to circumvent any of the above measures. This includes, for example, any site offering instructions or tools to enable the circumvention of certain methods of web-blocking.

Appeals

Anyone subject to such an order has a right to apply to the court to vary or remove the order, but only if there was a problem with the original ruling, there is a potential problem with the “security or integrity” of the domain name system, or there is some other reason in the “interests of justice” for doing so.

S103 – Private Actions

The second main set of provisions allow for individual copyright owners to take actions directly against websites “dedicated to the theft of US property”, although the definition given does not require any theft, property, or US ‘victims’. Sites targeted must be foreign, as described above, have US users, and must primarily involve copyright or trade mark infringement, or circumvention of technical measures, or promotes itself for such actions.

As with the AG actions, the copyright owner can obtain a court order against the operators of the site, or the site and domain names themselves, forcing them to stop their actions. In addition, with the authority of a court, the copyright owner can apply for an order they can serve on payment and advertising providers, requiring that they cease dealing with the site.

Enforcing Orders

If an advertiser or payment provider fails to withdraw their services, a court can impose any remedy it has the authority to, including potentially imposing damages, in order to force compliance. This means that, unlike other “notice and take-down” procedures (such as the DMCA) which offer immunity in return for compliance, SOPA can impose penalties for non-compliance beyond removing immunities.

Appeals and Liability

Similarly to AG actions, there is the same opportunity to appeal, remove or amend any order under this section. Additionally, SOPA protects anyone served with such an order from any liability for reasonable actions taken to comply with an order, meaning that a payment provider or advertiser cannot be sued for their actions.

Minor Provisions in Title I

In addition to the main two types of action, the Act goes on to provide for immunity to a wide range of authorities, organisations and web services providers for taking any of the above actions, on their own initiative, against s “side dedicated to the theft of US property” that “endangers the public health”, if they have reliable evidence of this. Potentially, this could lead to direct take-downs of foreign websites without the need for a court order.

Finally, Title I of the Act establishes a system for official reports on the enforcement and effectiveness of these procedures.

Title II – “Enhancements” to IP Law

The second (and final) Title in the Act contains amendments to existing laws which, among other things, expand criminal copyright infringement to cover “public performance by means of digital transmission”, i.e. streaming works over the Internet. It also significantly increases the penalties for acts of “foreign espionage” of companies in the US (but not necessarily US companies).

Finally, the Act orders the compilation of a report on ways to cut off funds to “notorious foreign infringers”, and imposes new requirements for spreading US ideas on IP enforcement to other countries, by allocating additional resources and appointing an IP attaché to each embassy.

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