Where Did My Wikipedia Go?
Just the Facts on SOPA and PIPA
By: Maria
Crimi Speth and Ashley A. Marton
If
you used to think that SOPA was a misspelling of soap, after
January 18th, 2012 you know better. What is now being
called, National SOPA Blackout Day, the internet was flooded with
thousands of articles, hundreds of petitions and most chilling to
many users - blocked websites. Wikipedia shut down its services for
the day and Google's home screen icon contained a censorship box
that lead to even more petitions and articles. Over twenty high
volume websites, ranging from Craigslist.com to Moveon.org, blacked
out their websites. All this internet activity was done to protest
two pieces of highly controversial legislation currently pending in
the House and Senate: SOPA and PIPA. Amid this frenzy, it's
important to understand what these bills mean; and more
importantly, how they can affect your business.
Although the SOPA and PIPA legislation is still being debated, if
these bills are passed it would significantly change the current
law dealing with internet piracy and copyright
violations.
What do SOPA and PIPA actually
mean?
SOPA or the "Stop Online Piracy Act" was introduced to the House of
Representatives this past October. PIPA or the "Protect
Intellectual Property Act" was introduced to the Senate in May,
2011. Both bills act in conjunction with each other and have the
stated goal of enabling the United States to get tougher with
foreign pirates who steal American made intellectual property and
consumer goods. PIPA enables private companies, such as SONY or
Paramount, to sue search engines, directories or any website for
hosting content that infringes on copyright. PIPA also provides for
a DNS filtering system that basically allows the government, upon
court order, to divert users from accused websites. SOPA provides
steep penalties for websites that knowingly distribute infringing
content. Penalties range from fines to prison time, but the so
called "blacklist" has received the most media attention. While you
won't find the word, "blacklist" in either SOPA or PIPA, the text
of the bills essentially encourages the government to block the
accused websites and encourage private companies to create target
lists. These target lists are used to directly send notice to
payment service providers -like Visa - demanding a cut off of
payment to the accused websites. It is this threat of a blacklist
that caused so much commotion that over a dozen tech companies
participated in "blackout" protests on January 18,
2012.
Do SOPA and PIPA really change
things?
The new penalties embedded in SOPA and PIPA represent a big change
in the current law, which is codified in the DMCA, "Digital
Millennium Copyright Act." The DMCA grants a safe harbor to
websites and internet service providers ("ISP") as long as they act
in good faith to take down infringing content upon notification
(the take down notice procedure). Under the current law, websites
and ISPs are generally not liable for copyright infringement by
others as long as they remove the content upon proper
notification. There are some provisions in SOPA that arguably
remove that safe harbor in that they create liability even in the
absence of actual notice. In other words, an innocent website
or ISP could be found liable for third party infringement if this
law is passed. Additionally, the bills would allow copyright
holders to sue different level of websites (i.e. not just those
hosting the illegal material but also those sites associated with
it) and instill much harsher penalties, such as 5 years in prison
or millions of dollars in fines.
What are the arguments for and against
SOPA/PIPA?
Supporters of these bills argue that it enables the government and
copyright holders to take a firm stance against copyright
violations in the United States. SOPA/PIPA creates new tools for
combating online piracy, while providing holders with more avenues
of recourse. Websites will be forced to take a more proactive role
to ensure compliance with the law or they face harsh
consequences.
While combating copyright infringement is a laudable goal, those
opposed to the bills point out that the law goes too far. The
internet is supposed to be open medium of expression that is not
controlled by the government or private company interests. SOPA
changes this by allowing the government to essentially hack
websites by rerouting users through the DNS filters provisions.
PIPA provides private companies with incentives to sue and maintain
lists of websites that allow copyright violations. Broadly
speaking, the language of these bills could impact free speech at
every level and inhibit innovation.
Supporters and opponents of the bill are not confined to one
political party and many politicians have changed their position.
PIPA is scheduled for a debate and vote on January 24, 2012 by the
Senate. SOPA is also making its way through the House, but was
delayed from a scheduled hearing on January 18, 2011, due to lack
of consensus on proposed amendments. Right now SOPA is not
scheduled to reach the House floor until these amendment issues can
be resolved.
So how does this affect me?
It is particularly important to pay attention to these bills if
your company has a website that permits others to post content or
contains links to other websites (i.e. sister or referral sites).
If it does, passage of these laws could create liability unless you
ensure that users of your site do not post infringing material and
that you do not link to websites that contain infringing
material.
Additionally, if your business heavily relies on websites such as
Wikipedia, YouTube, Mozilla Firefox, Facebook or Twitter, you may
see interruptions with their service or possibly a complete
shutdown. Business may also see sent or received emails
blocked by their email providers if the messages contain links to
an accused website.
For now SOPA and PIPA will remain in debate in the House and
Senate. However, its important that your business understands what
will happen if either or both of these bills are passed.
About the authors: Maria
Crimi Speth is an intellectual property attorney at the Phoenix
law firm Jaburg Wilk and sits
on the prestigious International Trademark Association-Internet
committee. She is the department head of the
intellectual property group and has expertise in copyright law,
trademark, trade name, Internet law and intellectual property
litigation. Maria is the author of the book of
Protect Your Writings: A Legal Guide for
Authors. She can be reached at
602.248.1000 or mcs@jaburgwilk.com.
Ashley A. Marton received her J.D. from the Phoenix School of
Law. She can be reached at ashleyallison84@gmail.com
.
This article is not intended to provide legal
advice. Always consult an attorney for legal advice for your
particular situation.
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