The SOPA/PIPA Problem: Everything Old is New Again — Or is it?

SOPA and its senatorial sister bill PIPA are officially stalled in Congress, and now that some of the din surrounding these failed bills has quieted, I think it is worthwhile to take a  closer look at their place in the succession of Internet-targeted legislation.

Whether you agree or disagree with the proposed legislation, it is difficult to ignore the amount of media attention received by the bills.  Much of the hullabaloo surrounding these bills is largely the product of propaganda generated by competing interests: Internet service providers like Google, Facebook, and Wikipedia on one side, and content owners, including the entertainment industry, on the other.

Following a build-up fueled by heated Congressional debate over the bills and their eventual condemnation by the White House, the public’s attention was firmly captured when service providers like Wikipedia, Craigslist, and WordPress temporarily disabled all or parts of their websites in protest of the proposed bills.  Google even blacked out its logo and launched an anti-SOPA/anti-PIPA public petition, which accumulated more than 7 million signatures in a single day.

Free speech advocates asserted that the legislation constituted censorship without due process and Republican presidential candidates even took a stand against the bills during a national debate, injecting the issue into prime time.  At the same time, the entertainment industry generated its own buzz by purportedly paying lobbyists $94 million dollars in support of the proposed legislation, a fact that was widely publicized.  Make no mistake: companies with the most at stake fueled much of the hype surrounding the proposed legislation in an attempt to raise public awareness and persuade Congress to act in their best interests.

However, corporate heavy hitters have been vocal about proposed Internet-focused legislation since such legislation first began to emerge in the mid 1990’s, and while the public has been part of the discussion in the past, it may be argued that media penetration and public attention have never risen to the level that has surrounded the SOPA/PIPA debate.  The stakes are certainly higher than they once were, as the value of e-commerce, online advertising, and the like — both legitimate and illegitimate — can be measured in billions of dollars, a climate far different from ten or fifteen years ago.  The mid-1990’s don’t  seem oh-so-long ago, but bear in mind that this was a time when websites still looked something like this:

The value of Internet-related commerce is the product of the value that the public places on the Internet itself, and this is where the greatest change has occurred over the last decade and a half.   As a technology, the Internet is unmatched with respect to the rate at which its application is growing.  Not only has the Internet become a universal, borderless medium for communication, it has also become integrated into the fabric of our daily lives, and increasingly so.  Everything is becoming tied to the Internet — from retail brick and mortar shopping with near field technology to streaming television, to household appliances and vehicles.  From dental offices to DVD players to dating services, the Internet is increasingly ubiquitous.

Much of the attention surrounding SOPA and PIPA is likely attributable to the public’s increasing interest in legislation that affects the way users interact with the Internet.  Otherwise stated, the public is more sensitive to any threat to its Internet, and rightfully so.  Evidence that the SOPA/PIPA kerfuffle is at least partly tied to the public’s increasing reliance on the Internet might be found by stepping back a few years to look at the climate surrounding the enactment of earlier Internet-focused amendments to the U.S. Copyright Act, particularly the 1996 Communications Decency Act and the Digital Millennium Copyright Act.  The CDA and the DMCA were enacted in 1996 and 1998, respectively, during the Internet’s adolescent years.  The players were mostly the same, as Hollywood pushed for the DMCA, service providers (mainly ISP’s) resisted it, and free speech advocates offered their two cents.  Both bills, however, passed without much difficulty, despite a number of controversial provisions, not unlike the provisions found in SOPA/PIPA.  Among other things, the CDA and the DMCA have some legislative elements in common with the proposed SOPA/PIPA legislation in that they: (1) contain provisions that offer immunity to online service providers; and (2) provide judicial shortcuts and/or remedies to content owners, to enable them to seek swift and effective relief from online infringement.

The former element is critical to fostering the growth of the Internet, as the drafters of both the earlier and current legislation recognized: if service providers are held accountable for infringement in which they merely act as a conduit, they would be forced to police their networks beyond reasonable means, impeding the growth and innovation of the Internet.   The CDA contains a Good Samaritan provision in § 230 that insulates ISP’s from liability for torts committed by Internet users and from liability for restricting pornographic content.  Likewise, § 512 of the DMCA offers a series of safe harbor provisions that online service providers  from liability for copyright violations that occur via their services, providing that these providers meet several delineated obligations.  SOPA, too, contains such a provision, in proposed § 104, which provides immunity to service providers for taking action against websites owners, domain name owners, payment providers, and search engines providers that take action prior to the issuance of a court order issued to terminate a site dedicated to the theft of U.S. property.  PIPA’s immunity provisions are arguably less clear, but they are present, at least to the extent of providing service providers for with immunity for acting once a court order has issued.

Controversial judicial shortcuts and expanded remedies are also incorporated into the DMCA, CDA, SOPA, and PIPA.  For example, the DMCA includes takedown notice provisions that require service providers like YouTube and Facebook to remove content immediately in response to a notice of infringement, without first evaluating the claim with respect to fair use or accuracy.  If the provider fails to act as required by the notice, it cannot avail itself of the DMCA’s safe harbor provisions and it becomes subject to copyright liability.

SOPA contains similar notice provisions in proposed § 103, titled “Market-Based System to Protect U.S. Customers and Prevent U.S. Funding of Sites Dedicated to Theft of U.S. Property.” Section 103 is designed to separate the owners of infringing sites from their financial lifeblood by halting their use of payment systems like PayPal and Visa and  stopping the flow of any income from advertisers on those sites.  Under the provisions of this section, content owners who become aware of pirated content on a website would be able to serve notice upon any payment or advertising service provider that is associated with the infringing site.  In turn, the service provider would then terminate its business with the owner(s) of such sites.  Like the DMCA, there is a judicial shortcut here, because no court proceeding is required to validate the notice and the notice itself need contain only a minimum of information to comply with the law.

This seems like a substantial judicial shortcut, but §103 is a bit of a paper tiger, because absent an actual court order, SOPA does not place any threat upon payment or advertising service providers for failing to comply with the notice.  Their participation in the process is entirely voluntary, unless and until a court order is supplied.  Section 103 is not without impact, however; it serves to outline the process that service providers should follow to properly comply with the proposed law and avail themselves of its safe harbor provisions without fear of recourse.  However, with SOPA effectively dead in Congress, its effectiveness may never be tested.

Although the authority of the CDA was substantially abrogated by the Supreme Court in Reno v. ACLU in 1997, it and the DMCA persist, despite challenges.  And without question, the Internet has continued to  flourish despite such legislation. SOPA and PIPA are, in several ways, weaker pieces of legislation than those acts, yet public (and corporate) outcry over the proposed legislation has successfully prevented its enactment.

The demise of the arguably milder SOPA/PIPA legislation is puzzling.  Is it due to an increased public desire to preserve the Internet in its current form? Or is it instead the  product of a shift in power from corporate entities that own content (like the Motion Picture Industry) to corporate entities that serve content (like Google)? Very likely, the answer is both, as companies like Google encourage the integration of the Internet into technology and build new technology around the Internet.  Correspondingly, users come to rely on that integration and the public’s response to anything that might interrupt the status quo is increasingly vocal.

Have we passed beyond a golden era in which Congress can successfully enact Internet-focused legislation through compromise and careful lawmaking? Are SOPA and PIPA examples of the higher bar that legislators must overcome in order to enact such legislation — a bar raised by content hosts and the public itself? Time will tell.

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2 thoughts on “The SOPA/PIPA Problem: Everything Old is New Again — Or is it?

  1. Interesting post. Thank you for writing it. I am also worried about the ability of our government to create good legislation.

    I’m having a hard time reconciling the statement at the beginning of your post that “the entertainment industry generated its own buzz by purportedly paying lobbyists $94 million dollars in support of the proposed legislation” with the statement at the end that “SOPA and PIPA are, in several ways, weaker pieces of legislation than those acts.” Why would they spend so much to buy weaker legislation?

    If it were stronger in ways that they care about and weaker in ways that they do not, then I could understand that. I can’t get from your post the subtle ways that the laws might be weaker or stronger than the existing laws. I certainly am not going to find subtlety in the media. I am probably not even going to be able to extract it myself by reading the proposed legislation, if I even had the time to read it, it and all the preceding laws, and all the decisions written about those laws over the years. :-/

    So despite being in the Internet business, and being an expert on that seemingly relevant topic, I end up in the same boat as most Americans. I have been taught by the entertainment industry that they love my money, but hate me. They have taught me they consider their best interests to be diametrically opposed to my own. I hear the entertainment industry spent a whole lot of money buying votes to change the laws. Given all that, and very little actual information, what am I supposed to think?

    There’s no room there for compromise. Mostly there’s no room because there is no trust. That same equation applies to pretty much every other industry. I don’t believe that we can have a functioning democracy without compromise and trust, so as a citizen, that makes me a little nervous.

    So how do we dig ourselves out of this hole?

  2. In regard to my characterization of the legislation as “weaker,” I derive that from the apparently voluntary nature of the statute which would appear to place no obligations upon service providers on the front end. If you look at the proposed text of SOPA Section 103, it creates a notice/takedown procedure not unlike the ofttimes-controversial one that appears in the DMCA, except that SOPA does not appear to contain any language that would obligate service providers to participate. The language of Section 103 reads, in part:

    Except in the case of an effective counter notification pursuant to paragraph (5), a payment network provider shall take technically feasible and reasonable measures, as expeditiously as possible, but in any case within 5 days after delivery of a notification under paragraph (4), that are designed to prevent, prohibit, or suspend its service from completing payment transactions involving customers located within the United States and the Internet site, or portion thereof, that is specified in the notification under paragraph (4).

    The inclusion of the word “shall” in that provision would suggest that compliance is mandatory, but nothing in the statute follows that suggests any penalty to the service provider for failure to comply. I read that as voluntary. When a service provider receives a notice, there seems to be little to compel it to comply. In contrast, the DMCA more clearly states that if a service provider fails to participate in the notice/takedown procedure, that service provider divests itself of the immunity from copyright infringement that the statute provides.

    To bring it full circle, in my mind, the voluntary or ostensibly voluntary nature of SOPA renders it a weaker piece of legislation, of the all-show-and-no-go variety. In the very least, it is a poorly-written piece of legislation that appears to have no backbone, and while it isn’t wise to enact sloppy legislation, it is unfortunately common. I would expect resistance to be greater when there is more of a hard line built into a piece of legislation, which is why I find it interesting that SOPA met with such resistance. I attribute that resistance more (or at least more than usual) to the expanded public interest in the Internet and less to the efforts of private interest groups.

    With respect to the entertainment industry’s investment in SOPA/PIPA, I would suggest that lobbying is an expensive endeavor and it does not always yield the desired result. In this case, the SOPA/PIPA legislation underwent substantial amendment as it was kicked around in Congress and the current version may bear little resemblance to that which the entertainment industry envisioned.

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