Congress Continues To Pretend That SOPA Actually Is The Law

from the shameful dept

One of the more troubling aspects that we've seen in the past few years is that, despite SOPA failing to pass in Congress, thanks to widespread public outcry, various copyright interests have continued to look for ways to push forward ways to implement SOPA in practice, even if not in law. For example, we recently pointed to how the USTR praised Italy for implementing a plan even more draconian than SOPA, likely leading to a later attempt by the USTR to "harmonize" international laws by requiring the US to do the same in a future trade agreement or treaty. Similarly, the US government still continues to do questionable domain seizures that appear to be a clear First Amendment violation. Even more nefarious, however, may be the various attempts by politicians to push for questionable "voluntary agreements" that effectively implement SOPA anyway.

Recently, four members of Congress -- Reps. Bob Goodlatte and Adam Schiff, and Senators Sheldon Whitehouse and Orrin Hatch -- sent an exceptionally questionable letter to various internet ad networks, asking them to start blacklisting "piracy sites." This was one of the requirements in SOPA. And, as we discussed years ago, there are serious problems with such plans. Back in 2011, ad giant GroupM tried to do the same sort of thing, asking Universal Music to provide it with a list of piracy sites, and that list included tons of legitimate sites -- including SoundCloud, Vimeo, the Internet Archive, BitTorrent's corporate page... and a bunch of hip hop blogs. It also included (Universal music artist) 50 Cent's personal website as a piracy site.

And these four members of Congress seem to have no problem with such censorship.

But this letter is even worse than that. Various ad networks have already set up "best practices" for not putting ads on "bad" sites -- but this letter says that's not enough:

We support these steps, but note that much remains to be done to operationalize the commitments made and to make them effective in preventing the appearance of legitimate ads on pirate sites, rather than simply responding once they are placed. Best practices are useful, but greater specificity is needed around preventative measures that participants in the digital advertising ecosystem can and should take to avoid the placement of ads on piracy sites, as well as the development of metrics to measure the effectiveness of these steps. Only through proactive efforts will the harms associated with ad-supported piracy be mitigated.

As the EFF notes, such intimidation by members of Congress raises a whole host of legal problems:

Letting commercial companies with their own competitive motivations decide which sites are "rogue" or "pirate" sites is a recipe for abuse. It means that site owners who comply with copyright law could still have their sources of revenue cut off when a company who might be a competitor asks for it. The legislators' letter doesn't define "online piracy sites," but most of the definitions we've seen lately focus on the number of takedown requests a site has received from copyright holders, or the number of requests sent to search engines about the site. Since just a few companies send out a large portion of the takedown requests, those companies would effectively have the power to control who gets deemed a "piracy site."

As a federal law, this scheme would have created serious First Amendment and due process problems. As a private agreement among competing ad networks, it could raise other legal problems. Under the Sherman Antitrust Act, companies that compete with each other aren't allowed to make a pact amongst themselves about who they will refuse to do business with, especially if the purpose of the pact is to squelch competition or punish a rival. It's called a "group boycott" or "concerted refusal to deal," and it can lead to big-money lawsuits and years of trouble. In some cases, groups of competitors sharing a list of companies that they deem to be bad actors, with a wink-wink understanding that no one in the group should do business with those companies, was deemed a violation of the Sherman Act1.

Claiming that an industry-wide refusal to deal is justified by "fighting piracy" doesn't necessarily avoid an antitrust jam. In 2003, the Motion Picture Association of America decided that its members, major movie studios who compete with one another, would no longer send pre-release "screener" copies of films to members of awards committees like the Motion Picture Academy. According to the MPAA, the group boycott of awards committees was needed to stop infringement of pre-release movies. But the group ban put smaller studios at a huge disadvantage in getting award nominations and votes. In just two months, a court decided that the MPAA's screener ban was likely illegal, and that loss may have precipitated MPAA head Jack Valenti's retirement a few months later.

Once again, we have lawmakers -- with an unfortunately long history of being the movie and recording industry's lapdogs in Congress -- making suggestions that would make those industries happy, but which almost certainly violate the law. And, even worse, they clearly go against the will of the American public, who vocally rejected such measures when they were put into SOPA and PIPA.

Could it be that Reps. Goodlatte and Schiff, and Senators Whitehouse and Hatch, have already forgotten what happened when they pushed for such a law? I can assure them that the American public hasn't forgotten.

Filed Under: ad networks, ad providers, adam schiff, bob goodlatte, copyright, orrin hatch, sheldon whitehouse, sopa