Why SOPA Threatens the DMCA Safe Harbor

by on November 18, 2011 · 25 comments

The Stop Online Piracy Act (SOPA), a controversial bill before the House of Representatives aimed at combating “rogue websites,” isn’t just about criminal, foreign-based sites that break U.S. intellectual property laws with impunity. Few dispute that these criminal websites that profit from large-scale counterfeiting and copyright infringement are a public policy problem. SOPA’s provisions, however, extend beyond these criminal sites, and would potentially subject otherwise law-abiding Internet intermediaries to serious legal risks.

Before moving forward with rogue websites legislation, it’s crucial that lawmakers take a deep breath and appreciate the challenges at stake in legislating online intermediary liability, lest we endanger the Nozickian “utopia of utopias” that is today’s Internet. The unintended consequences of overbroad, carelessly drafted legislation in this space could be severe, particularly given the Internet’s incredible importance to the global economy, as my colleagues have explained on these pages (123456)

To understand why SOPA could be a game-changer for online service providers, it’s important to understand the simmering disagreement surrounding the Digital Millennium Copyright Act (DMCA) of 1998, which grants certain online service providers a safe harbor from liability for their users’ copyright infringing actions. In exchange for these protections, service providers must comply with the DMCA’s notice-and-takedown system, adopt a policy to terminate users who repeatedly infringe, and meet several other conditions. Service providers are only eligible for this safe harbor if they act to expeditiously remove infringing materials upon learning of them. Also ineligible for the safe harbor are online service providers who turn a blind eye to “red flags” of obvious infringement.

The DMCA does not, however, require providers to monitor their platforms for infringing content or design their services to facilitate monitoring. Courts have held that a DMCA-compliant service provider does not lose its safe harbor protection if it fails to act upon generalized knowledge that its service is used for many infringing activities, in addition to lawful ones, so long as the service provider does not induce or encourage users’ infringing activities.

Defenders of the DMCA safe harbor argue that it’s helped enable America’s Internet-based economy to flourish, allowing an array of web businesses built around lawful user-generated content — including YouTube, Facebook, and Twitter — to thrive without fear of copyright liability or burdensome monitoring mandates.

Conversely, some commentators, including UCLA’s Doug Lichtman, argue that the DMCA inefficiently tips the scales in favor of service providers, to the detriment of content creators — and, ultimately, consumer welfare. Pointing to a series of court rulings interpreting the safe harbor’s provisions, critics argue that the DMCA gives online intermediaries little incentive to do anything beyond the bare minimum to stop copyright infringement. Critics further allege that the safe harbor has been construed so broadly that it shields service providers that are deliberately indifferent to their users’ infringing activities, however rampant they may be.

What does SOPA have to do with all of this? Buried in the bill’s 78 pages are several provisions that run a very real risk of effectively sidestepping many of the protections conferred on online service providers by the DMCA safe harbor.

Section 102

Section 102 of SOPA empowers the Attorney General to seek a court order against an allegedly infringing foreign website. Such a court order would, if granted, effectively deny the site access to payment processors, ad networks, and even parts of the domain name system. Under § 102, a foreign, U.S.-directed website is deemed a “foreign infringing site” if:

[T]he owner or operator of such Internet site is committing or facilitating the commission of criminal violations [involving illegal copyright infringement, counterfeiting, or theft of trade secrets] and the Internet site would . . . [therefore] be subject to seizure in the United States . . . if such site were a domestic Internet site.

The part about websites “subject to seizure in the United States” refers to 18 U.S.C. § 2323, which states among other things that “[p]roperty subject to forfeiture” includes:

Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of [criminal copyright or trademark infringement].

This definition of a “foreign infringing site” is enormously troubling. Note the absence of any requirement of actual or constructive knowledge on the part of the site operator, let alone criminal intent. Under § 102, a foreign website built around user-generated content may be deemed an “infringing site” simply because its server has facilitated the criminally infringing acts of a single user — even if the site operator neither induced nor knew of the user’s unlawful activities. While an innocent foreign site operator might eventually be able to persuade a court to vacate an order deeming it a “foreign infringing site,” SOPA imposes an astonishingly low burden on the Attorney General of showing that a site is a “foreign infringing site.” If the bill is enacted as is, foreign websites that contain any user-generated content had better watch out.

SOPA proponents defend § 102 by pointing out that its definition of infringing sites comes straight out of the 2008 PRO-IP Act, which established the aforementioned civil forfeiture provision in 18 U.S.C. § 2323. But this statute’s constitutionality is currently being challenged in federal court by a team of attorneys that includes Stanford law professor and copyright guru Mark Lemley. The law’s breadth raises serious First Amendment concerns since it permits ex parte seizures of entire outlets of speech (e.g., websites) simply because the outlet has been used in some unlawful manner. SOPA may be based on existing law, but why should Congress extend this overbroad provision of the PRO-IP Act to encompass an even broader range of websites? If anything, lawmakers should revisit PRO-IP and narrow its applicability to sites intentionally operated for the purpose of committing or facilitating criminal infringement. Via Techdirt, even Floyd Abrams, a constitutional scholar who represents content companies that strongly back SOPA, conceded in a recent letter to Congress that unanswered questions remain regarding the constitutionality of 18 U.S.C. § 2323.

Section 103

The next section of SOPA, Section 103, isn’t any better. This section provides for private rights holders to seek court orders against U.S.-directed websites — including domestic sites — to deny them access to U.S. payment processors and ad networks. Section 103 deems a website “dedicated to theft of U.S. property” if any of the following conditions are met:

  1. [The site] is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates [copyright infringement, circumvention of copyright protection systems, or trademark infringement]; or
  2. [The site operator] is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the . . . site to carry out acts that constitute [copyright infringement or the circumvention of copyright protection systems]; or
  3. [The site operator] operates the . . . site with the object of promoting, or has promoted, its use to carry out acts that constitute [copyright infringement or the circumvention of copyright protection systems], as shown by clear expression or other affirmative steps taken to foster infringement.

The first prong of this definition encompasses any website that “has only limited purpose or use other than . . . engag[ing] in, enabl[ing], or facilitat[ing]” copyright infringement, circumvention of copyright protection systems, or trademark infringement. This language comes from 17 U.S.C. § 1201, also known as the DMCA anti-circumvention provisions. Just how “limited” of non-infringing uses must a site have to meet this definition? It’s hard to say. As Rob Pegoraro cheekily observed in a recent Roll Call op-ed, “‘[l]imited’ is one of those wonderfully elastic words — notice the ever-longer yet still ‘limited’ copyright terms granted to artists and creators?” This section of SOPA would be more clear if it relied on the “capable of substantial non-infringing uses” test originally articulated by the U.S. Supreme Court in its famous 1984 Betamax opinion, Sony Corp. v. Universal City Studios, Inc., which has since been interpreted by numerous federal courts in copyright infringement cases.

The second prong of the § 103 definition, which covers websites that take “deliberate actions to avoid confirming a [high probability of infringement],” is perhaps the most worrisome of the three prongs. This language appears to have been lifted directly from a 2011 U.S. Supreme Court decision, Global-Tech Appliances, Inc. v. SEB S.A. In that case, a patent infringement lawsuit, the Court found the defendant liable for inducement on the grounds that it took willful steps to blind itself of the existence of the patent at suit. The Court held that “willful blindness” exists when (1) a defendant subjectively believes that there is a high probability that a fact exists; and (2) the defendant takes deliberate actions to avoid learning of that fact.

Note, however, that Section 103 omits the first prong of the Global Tech willful blindness test, the subjective belief element. This omission might simply be an oversight — or it could reveal the intent of the bill’s authors to cast aside the subjective knowledge standard (which currently applies to service providers in the context of knowledge for purposes of the DMCA) and replace it with an objective, “reasonable person” standard. If plaintiff bringing a SOPA action is only required to show that a website operator should have known of its users’ infringement from the perspective of a “reasonable” operator, and that the site’s operator acted in some manner that had the effect of contributing to its ignorance of infringing activities by users, a vast array of websites that currently enjoy the protections of the DMCA safe harbor may face significant new legal risks. After all, website operators make design decisions all the time that might foreseeably impact on their awareness (or lack thereof) of user’ potentially infringing activities. Who knows what sort of well-intentioned, albeit deliberate, decisions might amount to”avoiding confirming a high probability” of infringement?

As David Sohn of the Center for Democracy & Technology has pointed out, “[t]his seems like a backdoor way of imposing a monitoring obligation on any website that allows users to post content.”  Temple Law Professor David Post, writing at the Volokh Conspiracy, observed that the bill might make it a “violation of law to keep the prosecutors from ‘confirming’ that you’re violating the law — all the prosecutor has to show, to make you vanish from the Net, is that you’ve somehow tried to keep the prosecutor off of your website!”

Why SOPA Could Endanger the DMCA Safe Harbor

SOPA proponents have dismissed concerns that the bill would risk undermining the DMCA safe harbor. U.S. Register of Copyrights Maria Pallante, testifying in a House Judiciary Committee hearing on SOPA on November 16, told members of Congress that it was extremely unlikely that any actions brought under SOPA would impact websites otherwise shielded by the DMCA safe harbor. Techdirt reports that Viacom executive Stanley Pierre-Louis recently argued that SOPA would not “[expand] the scope of secondary liability claims and [diminish] DMCA protections,” noting that “[t]here is no rule that permits ‘willful blindness’ of obvious wrongdoing under U.S. law, and nothing in the DMCA or any other statute has been deemed to hold otherwise.”

Technically, Pallante and Pierre-Louis are correct; SOPA’s provision at 102(c)(2)(A)(iii) appears to leave existing doctrines of copyright liability vis-à-vis the DMCA safe harbor untouched.

In practice, however, SOPA has the potential to effectively usurp the DMCA safe harbor in important respects. If the bill is enacted, online service providers would face a new worst nightmare: being cut off from payment processors, ad networks, and possibly even Internet service providers. As Eric Goldman recently explained, if a “website goes offline because of cash flow problems caused by the cutoff attributable to a single UGC content item, all of the UGC on that website goes dark because of a single content item.”

To avoid such an outcome, website operators will likely do everything they can to avoid falling under SOPA’s definitions — even if that means going above and beyond the requirements of the DMCA safe harbor. While I’m all for websites voluntarily taking prudent and measured actions to combat unlawful user activities (e.g., YouTube’s Content ID system), there are good reasons to be very skeptical of any legislation that effectively imposes on site operators any duty or obligation to monitor, or facilitate the monitoring of, user activities.

Fair concerns have been raised by thoughtful commentators about the DMCA’s limitations and shortcomings. Those concerns deserve a serious examination in the halls of Congress, and perhaps may even merit some careful, targeted tweaks to the DMCA. But the extraordinary remedies provided contained in SOPA should be reserved for genuine rogue sites that willfully flout U.S. laws with impunity and are beyond the reach of U.S. law enforcement authorities. While there are U.S.-based websites out there that violate copyright and trademark laws, extraordinary remedies (such as “going after the money”) should not be the primary method of penalizing such sites. If a rights holder believes that a domestic website is infringing on its copyright or trademark, the proper means of obtaining recourse is to file a civil lawsuit and, when appropriate, seek injunctive relief. The U.S. Marshals Service is tasked with enforcing civil judgments and other court orders entered against domestic actors by federal courts, and parties may obtain writs of execution to order law enforcement intervention against American individuals or businesses that violate court orders.

We Have To Pass The Bill To Find Out What’s In It

Reasonable people read SOPA’s provisions in very different ways. For instance, Terry Hart, writing at Copyhype, has eloquently defended SOPA’s definitions, arguing that “[t]he actions that would subject a provider to SOPA’s provisions are the same ones that would subject it to a copyright infringement suit under existing law and are actions that would not be protected under DMCA safe harbors.” But while SOPA’s definitions are based largely on well-established, time-tested statutes and precedents, some of the language isn’t as clear-cut as it might seem at first glance, as I explain above.

As a result, it’s tough to predict how SOPA would actually impact online service providers. Federal judges vary widely in the methods they employ in attempting to interpret vague statutes. There is no such thing as stare decisis when it comes to statutory construction; some judges focus on the plain meaning of a statute’s language, while others pour through committee reports and hearing transcripts in hopes of divining the legislature’s true underlying intent.

With apologies to Nancy Pelosi, what this means is that we probably won’t know what’s in SOPA until it’s passed. Even then, only after years of costly litigation will the contours of the bill’s provisions likely begin to approach a state of clarity. Consider that the DMCA, now thirteen years old, continues to engender serious disagreement among federal courts to this day. (For instance, courts disagree on what it means for a service provider to take “volitional acts” that encourage users to engage in infringement.)

SOPA’s potential breadth is especially problematic given that its potential victims are small, entrepreneurial Internet start-ups that lack the resources to pay a team of lawyers to examine their operational decisions for potential SOPA violations. As leading high-tech venture capitalist Fred Wilson has argued, “venture capitalists will think more than twice about putting $3mm of early stage capital into startups if they know that the vast majority of the funds will go to pay lawyers to defend the companies instead of to hire engineers to create and build product.”

Lawmakers Should Tread Carefully

While combating rogue foreign websites that violate U.S. laws flagrantly and with impunity should be a priority for lawmakers, SOPA’s definitions and remedies are simply too broad and too vague in their current form. They would cast a cloud of legal uncertainty over America’s innovative, startup-driven Internet economy. It would be a grave mistake to grant such powerful new tools to Justice Department and rights holders and assume that federal trial judges will interpret SOPA’s provisions as narrowly as is necessary to ensure legitimate Internet companies do not suffer adverse effects.

The recent House Judiciary Committee hearing on SOPA made clear just how much work remains to be done to craft an effective but targeted approach to rogue sites. Serious questions remain unresolved — not only about SOPA’s impact of the DMCA safe harbor, but also about cybersecurity, due process and free speech. Additional hearings are needed to explore these important issues with Internet engineers, law professors, and venture capitalists. Marking up the legislation before the end of 2011 — as Chairman Lamar Smith desires, according to the National Journal – would be a serious mistake.

For more on SOPA and rogue websites legislation; see: 

 

  • http://twitter.com/jdellinger james dellinger

    Great run down Radia.

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  • http://pulse.yahoo.com/_IZ5BM5GNLA54OADSWGSXAMA7SY Jay

    The funny thing is, I’ve seen this run as a “Patriot Act for the Internet” on conservative sites, and even they say it’s a bad idea.  I don’t know if copyright has officially outlived its usefulness, but the movie and music industries have truly woken up a very strong backlash to SOPA/Protect IP.

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  • Charles

    Ryan, I’m no SOPA cheerleader, but to give SOPA its full due, you should at least revise your post to mention, under the “Why SOPA Could Endanger the DMCA Safe Harbor” heading, that SOPA section 102(c)(2)(A)(iii) explicitly says that SOPA won’t affect the DMCA safe harbor provisions.

  • Ryan Radia

    Thanks, Charles. Did you catch this sentence in my post? “Technically, Pallante and Pierre-Louis are correct; SOPA’s provisions appear to leave existing doctrines of copyright liability vis-à-vis the DMCA safe harbor untouched.”
    I’ve edited the post to specifically cite the provision you mentioned. 

  • Charles

    Cool Ryan, thanks.  

    By way of background, I have no horse in the race — I’m a patent lawyer, but I’ve never had any meaningful copyright issues come up in my practice, and my clients haven’t talked to me about SOPA.  I started looking at the statute because, reading the news, one gets the impression the sky is falling.  

    For example, as a customer of Dyn (a dynamic DNS provider) I got a plea in my inbox from the CEO urging me to resist SOPA.  In his appeal, the CEO warns that:

    “this bill would give the government more control into shutting down websites they don’t agree with in general. Anti-American sentiment promoted on Twitter, Tumblr or another one of our clients that promotes free discourse? Both the sites themselves and Dyn as their DNS provider could be penalized for simply providing a conduit in which someone can access or promote views the government doesn’t agree with — regardless of whether the source is based in the U.S. or not.”

    (Full post here: http://dyn.com/sopa-what-you-should-know-why-dyn-opposes-it/ )

    Now, even without having ever read the bill, that just sounds… wrong.  And now that I HAVE read the bill, it sounds embarrassingly wrong.

    Okay okay, you shouldn’t have to answer for that guy’s misunderstanding. But that guy’s misunderstanding has prompted me to take a close look at SOPA.  I’d love to address some concerns about s.103… not as a SOPA advocate, necessarily, but as fan of honest and thorough discourse.

    So, paraphrasing, your concerns seem to be about the vague definition of a site “dedicated to theft of U.S. property.”  Namely, the “limited [non-infringing] purpose or use” is vague, and the “avoiding to confirm…” prong imposes a de-facto monitoring duty.

    As for the first concern, that’s valid… but is it a big deal?  I mean, isn’t this just a style of legislation, intentionally leaving a word or two to be interpreted in light of specific examples?  

    After all, consider section 1 of the Sherman Act, which is either at or near the top of the vagueness scale for statutes.  From a statutory skeleton that is so vague as to be almost meaningless, courts have crafted a highly refined body of law.  Antitrust law today may not be perfect, but it hasn’t been uncomfortably vague for quite a while.

    As for the second concern, the “avoiding to confirm…” prong should be understood in light of the rest of the “takedown process” of section 103.  As a threshold matter, s.103 is the “market based” prong.  Despite David Post’s concern that this prong can be triggered by “keep[ing] the prosecutors from ‘confirming’ that you’re violating the law,” it doesn’t appear to me that prosecutors have any remedies under s.103 at all, because they’re not “qualifying plaintiffs” under 103(a)(2).  As for bona fide qualified plaintiffs:

    1. Under 103(b)(1) or (2), a plaintiff can send a notification to third parties (payment guys or ad guys) associated with a target site, requesting the third parties to cut the target site off. But: 

    2. Under 103(b)(4), in the notification, the plaintiff has to aver under penalty of perjury that the target site is “dedicated to theft of U.S. property” including “the specific facts to support the claim” (103(b)(4)(A)(iii)).  

    So how can, say, Viacom aver specific facts supporting the “avoiding to confirm” prong?  All I can think of are things like deliberately ignoring DMCA takedown notices or other communications alerting the site about infringing content.  

    But more importantly, the mere presence of infringing material at least arguably isn’t enough to satisfy the “avoiding to confirm” prong, for at least two reasons.  First, that interpretation would impose a de jure duty to monitor, which conflicts with SOPA sec. 2(a)(2) (the savings clause viz. DMCA).  Second, it seems inconsistent with the plain meaning of the word “confirm.”    

    Maybe that’s not conclusive, but it’s at least arguable in good faith.  And that’s enough, because:

    1. The payment/ad guys can send a counter-notification under 103(b)(5) and ignore the original notification from the copyright holder. It appears the counter-notification itself can be boilerplate, as long as the payment network provider or advertising service has a “good faith belief” that the notification is off the mark.  In the absence of case law to the contrary, I think the arguments above are good faith reasons.  

    Then what?  Then Viacom is free to go to court and try to get an injunction.  That at least slows the process down, and doesn’t leave small sites as vulnerable.  To be sure, if one really is concerned about abuse, it might also be nice to require plaintiffs seeking an injunction to pay the other side’s costs or post a bond that is forfeited if they’re unsuccessful.  

    None of the above story suggests a de facto duty to monitor to me.  In fact, it seems like a natural extension of DMCA.  After all, one can send DMCA takedown notices until they’re blue in the face, but if the site ignores them, then what?  For a judgement-proof defendant, not much.  But under SOPA, ignoring the DMCA takedowns is exactly what’s needed to get the third parties involved.  Makes perfect sense.

  • http://bennett.com/blog Richard Bennett

    Regarding: “As Eric Goldman recently explained, if a “website goes offline because of cash flow problems caused by the cutoff attributable to a single UGC content item, all of the UGC on that website goes dark because of a single content item.””

    There’s nothing in the bill to suggest that a website can be taken down on the basis of a single UGC item. In the first place, a genuine UGC item isn’t a copyright violation, taking the meaning of User-Generated Content at face value.

    And more importantly, Goldman is misreading the bill’s language about “Internet site or portion thereof” to mean “a single file” while the plain language of the bill makes it clear that the smallest unit of “Internet site or portion thereof” would be the entire collection of assets that provides service to American users. Thus an entire site (or the portion of an entire site that serves the US) would have to be dedicated to piracy according to the three factor test you’ve given.

    My understanding of the bill is that it intends to target web sites that have no material purpose but trafficking in goods, digital or tangible, that the operator is not licensed to sell or distribute.

    As the language is unclear to some I’m all in favor of tightening it up, but I think it’s a huge mistake to accept the Goldman/Post reading of the bill as representative of what it intends to say.

    Goldman has said elsewhere that the language of the bill is irrelevant for all practical purposes as law enforcement will use it as a pretext to shut down legitimate web sites in any case. I can’t comment on that.

    On your larger point, I think the bill does alter the DMCA safe harbor to make it more balanced. The practice with UGC sites such as YouTube today is actually to do more than the minimum required by DMCA, as they do employ pattern-matching software to examine uploads. So one could argue that the bill raises the bar from DMCA theory to current best practice.

    All of that being said, the inclusion of Sec. 103 in SOPA has raised a lot of eyebrows on the more responsible side of the debate, and for understandable reasons. That’s a long discussion.

    The use of DNS blocking has also excited a lot of people (see: http://www.ip-watch.org/weblog/2011/11/20/filtering-and-blocking-closer-to-the-core-of-the-internet/ ) but they probably don’t understand the RPZ feature that Paul Vixie added to BIND 9 for blocking access to malware sites. Even that has got a lot of old-school “everyone’s an angel on the Internet” people upset, but Paul did it for good reasons.

  • http://bennett.com/blog Richard Bennett

    Very sober analysis.

  • Ryan Radia

    SOPA § 102(c)(2)(A)(iii) states that “[n]othing in this subparagraph shall affect the limitation on the liability of a service provider under section 512 of title 17, United States Code.” However, SOPA § 103 — which encompasses domestic websites — includes no such savings clause. Moreover, I’m not arguing that SOPA would put OSPs at greater risk of civil liability. Rather, SOPA would create a new suite of remedies that go above and beyond the realm of ordinary civil copyright litigation. While SOPA § 102(c)(2)(A)(iii) would seemingly ensure that foreign websites in compliance with the DMCA will continue to enjoy current safe harbor protections, it does not protect such websites from actions brought by the Attorney General pursuant to SOPA.

    As for SOPA’s vagueness, you are right that it’s far from unique to this particular bill. Congress has enacted tons of vague statutes over the years. Many commentators, including yours truly, believe this is a very troubling phenomenon. You appropriately mention the Sherman Act — a vague, well-intentioned bill that wreaked havoc on American consumers for decades before courts began applying economic principles in antitrust cases. (Robert Bork explains the Sherman Act’s horrendous track record in The Antitrust Paradox (http://en.wikipedia.org/wiki/The_Antitrust_Paradox). We should be very worried whenever Congress is pondering vague, open-ended statutes — particularly when they implicate the fast-moving world of technology.

    The prospect of an “affirmative duty to monitor” is a worst-case scenario, and I don’t think it’s very likely that SOPA would create such a duty. But there is a very real possibility that the legal uncertainty that SOPA would create for UGC-based might well influence their design decisions to the detriment of user privacy and choice. Consider that every Internet startup makes countless “deliberate” decisions involving platform design and back-end operation. Many of these decisions could realistically implicate the site operator’s ability, or lack thereof, to “confirm a high probability of infringement.” If I launch a personal video sharing website for adult content and elect against including a search function for whatever reason, have I not potentially encumbered efforts to confirm a high probability of infringement? What if I elect not to include a list of “popular recent videos” on my home page? Wouldn’t these actions potentially render a plaintiff unable to obtain sufficient evidence in discovery to show a defendant’s website has “only limited uses other than” infringement?        

    It seems to me that a rights holder would have a decent chance of prevailing in a SOPA action brought against a UGC website if the rights holder is able to show 1) that the website contains a significant number of unauthorized infringing materials; and 2) that ascertaining with reasonable certainty whether the website is “primarily dedicated to infringement” is not feasible due to specific design decisions made by the website operator (e.g., not maintaining thorough logs of user activity, not including a “search bar,” not logging data about which materials are most frequently trafficked by users, etc.). Because SOPA § 103 does not require that the site operator subjectively believe that there is a high probability of user infringement, a plaintiff could prevail merely by showing that the website operator should have known that a significant amount of infringement was taking place and that the operator took actions that a reasonable website operator would have realized might encumber efforts to establish a high probability of infringement.

  • Ryan Radia

    You raise fair points regarding the Goldman and Post readings. Under a more realistic reading, however, I still believe that SOPA as constructed is too broad (see my second comment to Charles below for more on that). 

    As for altering the DMCA safe harbor, as I stated in my initial post above, I’m all ears to thoughtful proposals to amend the DMCA to strike a better balance between protecting intermediaries and rights holders. However, any SOPA-style approach that involves “going after the money” should be reserved for websites beyond the reach of U.S. courts. If Congress wants to reform the DMCA, the proper way to so is by actually reforming the DMCA. While I applaud YouTube’s practices, making the DMCA safe harbors contingent on employing a Content ID-like content filtering system is not as simple as it sounds. Who decides which filtering technology a site must use? Must all sites filter, or just big sites? What kind of content should be filtered? What happens to a rights holder if it submits a “false” fingerprint? These questions are not impossible to answer, but nobody’s answered them to date as far as I know.

    As for SOPA’s breadth, I suggest you take a closer look at Section 102. It states that a foreign website is deemed dedicated to infringing activities if the website’s owner or operator facilitates any acts of criminal copyright infringement. That’s extremely broad. I suspect that nearly all operators of major UGC websites have at some point unknowingly facilitated criminal copyright infringement! 

  • http://bennett.com/blog Richard Bennett

    I tend to agree that DMCA reform is best accomplished by amending the DMCA itself. SOPA has enough to worry about on the overseas front without going into the complexities of defining best practices for DMCA compliance; there’s a lot to that subject and it deserves a separate bill. That’s why PIPA doesn’t go there.

    I don’t agree with your reading of Sec. 102, but I recognize there’s much fog there. As I follow the text, it’s trying to say a site is dedicated to piracy if it has no material purpose other than disseminating protected material without a proper license, whether that transfer is by downloading, streaming, or P2P indexing ala The Pirate Bay. TPB only “facilitates” piracy as it doesn’t host the material on its site or run its own tracker. But by indexing a collection of information that’s 99% unlawful in such a way that it’s trivially easy for users to engage with each other via DHT to perform unlawful activities, it’s a “facilitator of piracy” that has no purpose other than piracy.

    If you can write a clause that narrowly targets what sites like TPB are doing without touching any innocent ones, I’d sure like to see it. As I understand it, TPB respects DMCA takedowns too, but they laugh as they do it since the files come right back.

  • Ryan Radia

    The Pirate Bay overtly flouts the DMCA, and for that matter pretty much all laws, period. See http://thepiratebay.org/legal:

    Nice graphs for the law firms who don’t get the hint above: we used to have a nice graph here, but it’s simpler to just say: 0 torrents has been removed, and 0 torrents will ever be removed.

    As for SOPA § 102, I don’t see how your reading is justified by the language of the definition of a “foreign infringing site,” which is as follows:

    (a) Definition- For purposes of this section, a foreign Internet site or portion thereof is a `foreign infringing site’ if–(1) the Internet site or portion thereof is a U.S.-directed site and is used by users in the United States;(2) the owner or operator of such Internet site is committing or facilitating the commission of criminal violations punishable under section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of title 18, United States Code; and(3) the Internet site would, by reason of acts described in paragraph (1), be subject to seizure in the United States in an action brought by the Attorney General if such site were a domestic Internet site.

    This definition plainly encompasses any website that is facilitating more than a small amount of infringement by its users. Were YouTube a foreign website, it would clearly fall under this definition, since it facilitates the performance and distribution of thousands (if not millions) of criminally infringing videos every day. I much prefer the PROTECT IP definition. It’s not perfect, but it’s much more carefully worded than SOPA’s definitions:

    (7) the term `Internet site dedicated to infringing activities’ means an Internet site that–(A) has no significant use other than engaging in, enabling, or facilitating the–(i) reproduction, distribution, or public performance of copyrighted works, in complete or substantially complete form, in a manner that constitutes copyright infringement under section 501 of title 17, United States Code;(ii) violation of section 1201 of title 17, United States Code; or(iii) sale, distribution, or promotion of goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Lanham Act; or(B) is designed, operated, or marketed by its operator or persons operating in concert with the operator, and facts or circumstances suggest is used, primarily as a means for engaging in, enabling, or facilitating the activities described under clauses (i), (ii), or (iii) of subparagraph (A);

    Edit: note that Merriam-Webster defines “facilitate” as “to make easier” or “to help bring about.”

  • http://bennett.com/blog Richard Bennett

    OK, PIPA is tighter, but what about: “and(3) the Internet site would, by reason of acts described in paragraph
    (1), be subject to seizure in the United States in an action brought by
    the Attorney General if such site were a domestic Internet site.”

    I don’t think YouTube qualifies for this treatment.

  • Ryan Radia

    Unfortunately, YouTube appears to be subject to seizure by ICE/DHS thanks to a provision of the PRO-IP Act of 2008:

    (1) Property subject to forfeiture.—
    The following property is subject to forfeiture to the United States Government:
    (A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title.
    (B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A).

    The “any manner or part” language in 18 U.S.C. § 2323 is the crux of the problem. Congress explicitly granted federal law enforcement authorities the power to seize property that is used just once to facilitate the commission of a crime. To date, no court has issued a contravening opinion (although that may soon change thanks to Durie Tangri LLP’s litigation on behalf of Puerto 80).
    Of course, were YouTube seized, Google would presumably respond with a First Amendment overbreadth argument, which would likely prevail. Unfortunately, however, foreign websites stand on dubious grounds in asserting First Amendment claims. This increases the likelihood that a future Attorney General might selectively enforce SOPA against an unpopular foreign UGC site that’s drawn the ire of the U.S. government for whatever reason.

  • http://bennett.com/blog Richard Bennett

    Somehow I don’t think YouTube is worried, but you make an excellent point. The courts have a very important role in filling in the blanks in and around these statutes to align enforcement with intent.

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