United States: SOPA Didn’t Die. It Just Became Soft SOPA.

January 2012 saw an explosion of controversy over two Internet-related bills that had been progressing through Congress: the Stop Online Piracy Act (SOPA) in the House, and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT-IP, further shortened to PIPA) in the Senate. While these bills ultimately were not enacted, some of their disconcerting features appear to be arising once again via enforcement efforts of the executive branch.

The SOPA-PIPA combination was the culmination of several years' worth of efforts by a coalition of intellectual property enforcers to beef up enforcement remedies against alleged Internet-based infringements. An earlier effort was the Combating Online Infringement and Counterfeits Act (COICA), which Senator Patrick Leahy introduced in 2010, but which died because of persistent opposition by Senator Ron Wyden. The new legislation, introduced in 2011, sought primarily to create new enforcement mechanisms and remedies against owners of websites accused of involvement in copyright and trademark infringement. Backers defined its targets as "foreign rogue websites," supposedly beyond the reach of normal U.S. enforcement activities. (In fact, the definition of "foreign rogue websites" excluded sites such as Sweden's Pirate Bay, which had never been brought to court in the U.S., while including foreign companies that had appeared in the U.S. to defend litigation.)

To reach these "rogue websites," the legislation aimed as follows:

  1. To require Internet service providers to take measures to prevent their U.S. customers from reaching the websites by interfering with the domain name resolution process;
  2. To require advertising networks to cut off advertising revenue of the websites by excluding them from advertising networks; and
  3. To require payment processing companies to stop payment processing for merchants operating the websites.

In addition, the legislation added another, broader enforcement provision, namely, to raise to a felony the crime of unlawful public performance of copyrighted works.

The legislation had widespread, bipartisan support in Congress. PROTECT-IP had 42 sponsors (out of 100 senators); SOPA had 32 sponsors at its introduction, with more expressions of support. Moreover, the backers of the legislation published a very long list of organizations and companies that had expressed their support, including the Council of Better Business Bureaus, National League of Cities, U.S. Conference of Mayors, and American Bankers Association. The Motion Picture Association of America and the United States Chamber of Commerce were the most vocal champions of the legislation, often taking a lead role in arguing for its passage.

Public opposition to these bills from many quarters grew steadily at the end of 2011. In November 2011, on the date that the House Judiciary Committee held hearings on SOPA, a group of civil society groups, along with community-based Internet technology and service giants Mozilla and Wikipedia, proclaimed "American Censorship Day" as an event to launch broad public education and opposition to the bills. A group of prominent technology and Internet companies wrote Congress about their opposition to the legislation. A groundswell of opposition grew throughout November and December 2011.

In early January 2012 a wide variety of public interest groups and Internet-focused companies beat the drum loudly in protest of different aspects of the laws. Security technology officials delivered strong criticism of the domain-name measures of the legislation as undermining key security protocols. Others blasted overenforcement of intellectual property laws and the lack of due process in provisions. Yet others questioned the need for "foreign rogue website" legislation in light of many successful enforcement efforts against foreign websites under existing law. On January 14, 2012, the White House, in response to a petition, stated its objection to the legislation in its then-current form. It said: "We will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet."

Even Justin Bieber had weighed in against related legislation (a bill by Senator Klobuchar, which SOPA picked up as a provision) that would elevate streaming violations to a felony. Pundits noted that Bieber's career started with YouTube videos of him singing Michael Jackson songs. The proposed five-year felony punishment that Bieber have might received for streaming Michael Jackson songs was a year longer than the sentence Jackson's doctor received when convicted of involuntary manslaughter in the singer's death.

A group of major public interest groups and websites, including Mozilla, Reddit, and Wikipedia, coordinated an Internet "blackout" day to protest the legislation. On January 18, 2012, Wikipedia went "dark" and more than 100,000 other websites joined in, either by going dark or by featuring a protest on their front pages. Many websites used their front pages to instruct their users on how to contact their senators and members of Congress. Over 10 million voters contacted their members of Congress or signed petitions. I was on Capitol Hill that day and saw staffers throughout the Capitol looking shell-shocked at the extraordinary outpouring of protest calls and messages they received. They had not seen it coming.

Soon after the Internet blackout and the crush of public calls and emails to Congress, many members of Congress had a change of heart. Within one week of the blackout, nine senators and eight representatives formally withdrew their sponsorships of the respective bills; others who had expressed support started distancing themselves from the legislation. The defections appeared to come from both ends of the political spectrum, with the persistent residual support coming from the political establishment at the middle of both parties. The week after the protest, the Republican leadership in the House recognized the split in its own ranks over SOPA and sent word out that it would not bring the bill to a vote; the Senate cancelled a cloture vote on PROTECT-IP.

The public had risen up, a new political force appeared to have coalesced, and SOPA and PROTECT-IP reportedly became "toxic" issues for elected officials. Those who had opposed the legislation celebrated their "victory." They resolved to be on the ready to rise up again on similar occasions in the future.

Or so it seemed. It turns out that most of SOPA is now in effect as a practical matter, and the Obama administration has called to resurrect another provision of it.

Back in 2008, previous legislation, the "Prioritizing Resources and Organization for Intellectual Property Act" (the "PRO-IP Act") had established in the White House the Office of the U.S. Intellectual Property Enforcement Coordinator (IPEC), whose role was to be primarily responsible for developing and implementing a Joint Strategic Plan against counterfeiting and piracy and to serve as a principal advisor to the President on domestic and international intellectual property enforcement policy.

At the same time that the SOPA and PIPA legislation was emerging, IPEC had set in motion a "voluntary cooperation initiative" to call on a variety of stakeholders, including domain name registrars, Internet service providers, search engines, and payment processors—the very same "intermediary" targets of the SOPA and PIPA bills—to join together to combat infringement by denying service to sites accused of infringing activity.

After the failure of SOPA and PIPA, however, IPEC's "voluntary cooperation initiative" became more important and rose in prominence. On May 9, 2012, at a Senate Judiciary Committee hearing to oversee the work of IPEC, sponsors of the failed legislation expressed frustration at the failure. IPEC responded by stressing the "voluntary" processes that had been coming into place. The Coordinator stated: "Since this strategy was issued, I have engaged with Internet service providers, credit card companies, domain name registrars, online advertisers, and others on a voluntary, non-regulatory approach to reduce infringement. We need to quarantine the bad actors and make the business of infringement as difficult as possible." The industries she identified were the very ones at the center of the SOPA and PIPA debate.

One concern about such voluntary programs is that they urge enforcement and remedies without any judicial determinations, applying extra-legal standards. A "quarantine" is another word for a "boycott," and the determination of who is a "bad actor" is more suited to a court than to an informal inter-industry understanding.

In the past two years, we have observed reports about a variety of aspects of the "voluntary" cooperation initiative. In particular:

  1. In July 2011 the White House announced a "memorandum of understanding" among major copyright companies and certain Internet service providers to create a "Copyright Alert System" that will target U.S.-based Internet users who are accused of copyright infringement, primarily through file sharing. Unlike SOPA and PIPA, this does not focus on making foreign websites unavailable to U.S. users. But part of the enforcement against those users is a series of "mitigation" measures that impair those users' activities on the Internet. Mitigation measures may include slowing the users' Internet access speeds to as low as 256 kbps, forced redirection of users to special pages before they can access other resources on the Internet, and even suspension of Internet access. There is a review arbitration process, in which the user must pay a fee and meet a 14-day deadline to seek the arbitration on certain specified grounds.
  2. In June 2011, a group of major credit card and payment processing companies reached an agreement to stop processing payments for owners of websites whom rights holders had accused of engaging in infringements. We have received a number of reports that payment processors are targeting certain categories of business for cutoff—for example, cyberlockers, virtual private network service providers, and Usenet access providers. We have observed a number of instances in which companies received threats of termination based on accusations by rights holders and had to argue for their continued participation in the payment networks.
  3. On July 15, 2013, the White House announced an initiative in which major Internet advertising companies had agreed to cut off advertising on websites that copyright or trademark holders have accused of infringement. The "best practices" document associated with the initiative attempts to strike a balance. It: (1) Seeks to carve out from enforcement websites that have substantial non-infringing activities; (2) Makes clear that the networks are not generally in a position to make judgments about intellectual property rights or infringement; and (3) Provides for a notice and counter-notice process that allows the websites to respond to accusations. Nevertheless, the policy calls for possible suspension of a website upon an accusation until verification that a site is non-infringing. That appears to place a burden of proof on the website owner, not the accuser.

These initiatives seek to carry out a soft form of SOPA and PIPA. But they have established frameworks that provide fewer legal protections for accused parties than SOPA and PIPA, which required judicial determinations before certain remedies occurred.

Moreover, even without SOPA and PIPA, the U.S. government has taken radical action against owners of foreign websites under existing law, including a raid on the New Zealand home of the owner of the Megaupload cyberlocker service, his arrest and attempted extradition, seizure of all of his assets, the shuttering of his company, and the loss by its customers of all access to their stored materials, regardless of lawfulness of their activities.

Even the fourth principal component of SOPA has returned. In July 2013, an Internet Policy Task Force of the Commerce Department repeated the call for criminal streaming (public performance) violations of the Copyright Act to be elevated from a misdemeanor to a felony.

So far the public outrage over SOPA and PIPA has not returned. Perhaps it has not happened because all eyes have been on Congress while the real action has taken place elsewhere, in the White House and in private meetings with certain industries.

The lesson of SOPA and PIPA may be this: The American public may rise up when it sees Congress act. But when the debate moves to other forums, especially where privacy and secrecy, informal private actions, and "soft law" are the rule, the public may not notice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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