S(T)OPA As Perceived By A Law Academic

TThe Stop Online Piracy Act (SOPA) is part of a seemingly more aggressive legislative strategy designed to combat the unauthorised infringement of IP rights on the Internet along with its (ugly) sisters the Anti-Counterfeiting Trade Agreement (ACTA) and the Protect IP Act (PIPA).

Google was just one of several big names to voice its opposition to SOPA.

It could be seen as the US equivalent to the current trend in European jurisdictions through the involvement of Internet Service Providers (ISPs) in cases of copyright infringement. The logic of this is understandable enough: suing end-users and measures involving Digital Rights Management (DRM) proved largely unsuccessful; either because they failed to stop the issue of digital copyright infringement or because they were largely PR disasters for the rights holders involved. Usually both.

In place of this, ISPs are in a position to potentially take more effective action; and have the technical means and resources available to do-so. The definition of an ISP at the European level is rather abstract, requiring reference to both a ‘service provider’ and an ‘information society service’ (see article 2(b) of the E-commerce Directive 2000/31/EC). In the United States it is slightly more concrete, inasmuch that one does not have to look up two different things. It is defined as, “… an entity offering the transmission, routing, or providing connections for digital online communications…”, and furthermore, “… a provider of online services or network access, of the operator of services therefore…” (see Title 17, chapter 5 of the US Code, s512 (k)(1)). Either way, both definitions are quite vague and in the American context is something SOPA has significantly exploited.

An ISP is the person who makes it possible for you to essentially go online and proceed about your business. For the privilege, you pay them a fee every month and you usually get an email address that you’ll never use. But consider, for a moment, the services that enable you to do things once you are online: search engines, payment operators, advertising, etc.. All services which are a functional, usable and commercial part of the Internet’s operation, serving both private and commercial users. All services which SOPA targets: the people who provide you with access to the Internet (‘Service Providers’), the people through whom you find what you’re looking for online (‘Internet Search Engines’), the people who facilitate your online transactions (‘Payment Network Providers’), and the people who help you promote your business enterprise (‘Internet Advertising Services’).

What’s more, they can (mostly) all be implicated under SOPA if the US Attorney General, or a rights holder says-so. The result is a two-pronged approach whereby injunctive relief may be sought against a website containing infringing material, and at the same time, one of our online service providers may be obliged to choke-off (‘prevent’) their services to that site.

To an extent, vesting such powers in a judicial office theoretically lends some legitimacy to the measures (which proved to be an issue in France, regarding the initial unconstitutionality of their HADOPI Law). However, as the more-developed case law across Europe demonstrates, such measures, by virtue of their operative effect, implicate any number of other issues of Law; few, if any, of which correspond to copyright: privacy, data protection, freedom of expression, and so(PA) on. There is nothing to suggest that things will be any different here.

However, it appears that the shoe is very much on the other foot regarding SOPA. Whilst comparable European measures may ultimately result in individual users having their Internet access terminated, the approach embodied in SOPA is one which can have much greater effect with regard to the existence and operation of websites and associated Internet services. It is for this reason, I believe, that the reaction from such providers has been so forceful, and perhaps why the process of this Act has stalled.

For me, this is the most interesting part of the SOPA story. There have been many instances where the lobbying power and legislative action of the content industries has resulted in changes to copyright law that benefit their own interests – copyright term extensions in the US and Europe, the denial of P2P as a legitimate business enterprise, and the protection of, er, technical protection measures… In this instance, the responses to SOPA on the part of the ISPs have been striking and represent (to me) the first significant counterpoint to aggressive legislative measures against illegal copyright infringement. Nonetheless, this has not been due to some sort of inherent crusade on behalf of copyright; again it is the potential knock-on effects relating to, for example, censorship and freedom of expression.

So, it appears that SOPA has become a double-edged sword, involving ISPs who, on the one hand, possess the necessary resources to combat illegal copyright infringement, and, on the other, possess the necessary resources to dig their heels in and make a point. About time too.

Nick Scharf is a PhD candidate, Lecturer in Law, and wannabe rockstar at the University of East Anglia Law School, Norwich, UK (views expressed are entirely his own and do not necessarily represent Editorial policy of Dotted Music Blog). You can contact Nick via email at N.Scharf@uea.ac.uk or tweet him @copyfight.