Copyright Lawyers Prime The Pump For The Return Of SOPA

from the because-of-course-they-would dept

Since the death of SOPA/PIPA two and a half years ago, Hollywood (and Congress) have tiptoed lightly over any proposed copyright reform, insisting that they've learned their lesson and that they won't try to bring back SOPA. Of course, with the big comprehensive copyright reform effort going on in DC, you can totally expect that the legacy copyright industry will do its best to put in place the parts of SOPA that it most wanted. That process appears to have kicked off in earnest last week, with the IP Section of the American Bar Association releasing a White Paper entitled A Call For Action For Online Piracy And Counterfeiting Legislation. I should warn you that, according to the genius intellectual property experts at the ABA's IP Section, clicking on that link may be a violation of their copyright. It's not, of course, but that doesn't stop them from claiming it is at the beginning of the paper:

© 2014 American Bar Association. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. For permission contact the ABA Copyrights & Contracts Department, copyright@americanbar.org or via fax at 312 988-6030, or complete the online form at www.americanbar.org/utility/reprint

Clicking on the link they put on their site would be "transmitting" the document by "electronic" means "without the prior written permission of the publisher," even if you could argue that they gave another form of permission by posting the damn thing. Oh, and of course, by copying that little tidbit and posting it here, I have also violated the bogus rules claimed in that very snippet.

You'd think that the IP Section of the ABA would understand things like fair use and copyfraud, but apparently not. Anyway, the document itself weighs in at a hefty 133 pages, and you can go through the whole thing, but it's basically setting the stage for trying to make internet companies copyright cops again, just as in SOPA. It talks up the problem of "Predatory Foreign Websites," (PFWs -- which is apparently the new nickname for "foreign rogue websites" that were the central focus of SOPA and PIPA. Then it talks about "intermediaries" (i.e., internet companies) and how those poor, poor Hollywood copyright lawyers can't really go after those "PFWs" and the best thing to do is to... put the liability on the internet companies themselves. Because of course that's been the plan all along: make Silicon Valley Hollywood's private copyright cops, and if they don't do a good job, fine 'em to hell.

First, it suggests that, even under existing law, courts could order internet companies to block infringing sites or activity under some unique, but barely tested, parts of the law. But, of course, it says this is not enough. It's main recommendations are summarized as follows:

Supplement the following civil remedies (which are already available under U.S. law to redress piracy and/or counterfeiting that occurs within U.S. borders) to redress online piracy and counterfeiting undertaken by PFWs, in cases where the intermediary(y)(ies) in question does not taken action voluntarily:

1. injunctions directing financial payment processors to freeze the assets of PFWs and to cease doing business with such websites;
2. injunctions preventing online advertisers from paying PFWs or from displaying further ads on those websites;
3. injunctions requiring search engines to remove PFWs from paid, sponsored links;
4. injunctions requiring website hosts to cease hosting PFWs;
5. injunctions permitting the seizure and destruction of counterfeit or pirated goods, or their delivery to rightsholders who are willing to bear the shipping and handling costs;
6. injunctions requiring the immediate removal of pirated works and/or content, counterfeit marks, logos, insignia, or trade dress that have been made available, displayed, or otherwise promoted by PFWs; and
7. monetary damages in the form of disgorgement of profits of the PFWs achieved as a result of the illegal activity, which shall be paid to the rightsholder from the assets frozen or advertising/sponsored links revenue that had been withheld by the intermediaries as described in points 1-3 above.

In short: make internet companies kill copyright infringement -- collateral damage, be damned.

It goes on to bring back the "private right of action" part of SOPA, which was so problematic and so egregious that even Lamar Smith dropped it midway through the process in the original SOPA fight, in an effort that he hoped would allow the rest of the bill to go through. A "private right of action" would basically let companies declare some website a "Predatory Foreign Website," allowing them to then force internet companies to block them or take other actions against them, or risk significant liability. Basically, it's a private right of censorship that the entertainment industry could use against innovative website they don't like. While the paper admits that this was controversial in SOPA, it offers a modified "hybrid solution" that it thinks works better:

[T]he IPL Section recommends a hybrid solution, by which rightsholders would be allowed to seek direct remedies directly against PFWs (who would have notice and an opportunity to be heard, including as to any objection to being characterized as a PFW) and direct remedies against one or more of the U.S. intermediaries identified above. This provides full due process rights to the alleged PFW, both in cases where it is sued directly and in cases where its status as a PFW is critical to the issuance of an injunction against one or more of the intermediaries that it uses. Such a procedure is a little less convenient for rightsholders, but it allows the site itself the maximum due process to defend itself against both the onus of being labeled as a PFW (and resulting liability) and the cutoff of financial support from U.S. intermediaries.

See? No problem. If you're running an innovative website out of, say, Malaysia, and a Hollywood studio declares you a "Predatory Foreign Website," I'm sure you can just hop on the next flight to the US to defend yourself in court, right? Easy!

The paper then looks at "government" solutions, and praises ICE for its infamous domain seizure program, which we've reported on extensively. At least the paper acknowledges the fact that this program resulted in the seizure and censorship of perfectly legal websites like Dajaz1 and Rojadirecta for over a year, but brushes them off as not that big of a deal, beyond being a potential PR problem:

The circumstances surrounding Dajaz1 and rojadirecta.com have achieved a level of notoriety among Internet freedom and civil liberties advocates that far surpasses their significance. Such incidents are few in number relative to the amount of seizures overall

I'm curious how completely shutting down and censoring a popular internet publication and a widely used internet forum full of protected speech, both for over a year, without any legal basis whatsoever, could possibly lead to people overstating its significance. It seems like those situations have been completely understated in significance. If they had been, say, an actual newspaper, and the government had gone in and seized the printing presses for over a year, without a reason or any recourse, and then the government just returned the presses over a year later without anything as much as an "oops, sorry," would people have just let it go, the way it happened with both of those other websites?

Besides, the ABA report conveniently leaves out that those weren't the only domains that were seized in a faulty manner. There were at least two others I know of that protested the seizure on the same basis, but last I'd checked, the government was still holding onto both of those domains and simply refusing to respond to the lawyers associated with either site.

The one real concession the paper seems to make is that the DNS blocking provisions of SOPA and PIPA were probably a bad idea.

There's much more in the paper, and it's well worth reading, to get a sense of what the ABA IP Section (a lot of entertainment industry lawyers are in there) are thinking about how to get a SOPA-like law through in the future (probably during the comprehensive copyright reform effort). To be fair, the paper is fairly comprehensive in its thinking, and at least mentions people being opposed to its reasoning and why (it even cites Techdirt multiple times...). It also pays some lip service to actually paying attention to those concerns, but nearly all of the actual recommendations bring back SOPA-like ideas. It's troubling to see that the overall lesson of SOPA was clearly not learned, and they're clearly planning to try, try again.

Filed Under: copyright, injunctions, intermediary liability, pfws, predatory foreign websites, private right of action, rogue sites, third party liability