Proponents of the latest disastrous IP bill, the "Stop Online Piracy Act" (SOPA) insist it only targets the "worst of the worst:" so-called "rogue" foreign websites that profit from pirating U.S. intellectual property. But the broad definitions and vague language in the bill could place dangerous tools into the hands of IP rightsholders, with little opportunity for judicial oversight. One very possible outcome: many of the lawful sites you know and love will face new legal threats.
As we've explained Section 103 of the bill sets up a so-called "market-based system" which would allow individuals and companies to cut off financial support from websites — both foreign and domestic — simply by sending a notice to their payment providers or ad networks. In many cases, these sites are dependent on the revenue from those payments and ad networks for day-to-day operation.
Here's a look at how some real, popular, and important sites could be affected by this legislation if it passes. We've even included a sample notice showing how IP rightsholders might target regular sites. To be clear: we don't believe that the way these websites operate is or should be subject to legal threat — that's one reason it's so important to block SOPA from becoming law.
Etsy is an online marketplace for handmade goods, where users can set up a storefront and create listings for things they've made. There are over 800,000 active "shops" filled with these handmade goods — far too many for Etsy to monitor manually. Further, because of the eclectic nature of goods listed, it's difficult to technically filter through the objects listed.
All that means that it's not feasible for Etsy to proactively prevent listings that may be perceived to violate US copyright or trademark law. That's a problem, because under SOPA, anybody who is a "holder of an intellectual property right harmed by the activities" of even a portion of the site, could serve Etsy's payment processors with a notice that would require them to suspend Etsy's service within 5 days. That means that a trademark violation in one of the storefronts could lead to payment suspension across the entire site. Unlike DMCA notices, which should be targeted to specific infringements, payment provider suspensions will likely target entire accounts. And even if Etsy protests, the bill's vigilante provisions, which grant them immunity for choking off a site if they have a "reasonable" belief that a portion of a site enable infringement, give the payment processors a strong incentive to cut them off anyway.
Flickr describes itself as "almost certainly the best online photo management and sharing application in the world". It hosts billions of images from millions of users. It's valuable not just to people with images to host, but also for people looking for images to license and use.
Like Etsy, Flickr takes copyright issues seriously, and complies with DMCA safe harbor requirements by taking down photos when it gets a valid complaint, establishing a repeat infringer policy, etc. But it doesn't proactively monitor its user-generated content for copyright infringement. The language of SOPA is vague enough that an individual or corporate rightsholder could claim this lack of monitoring as "taking … deliberate actions to avoid confirming a high probability of the use of the … site to carry out acts that constitute a violation." Flickr uses an ad network to place advertisements, and accepts payments for premium accounts. Both of those revenue streams could be suspended in a matter of days by a single complaint, and the process of reactivating them could be long and complex.
Vimeo is a video hosting site that focuses on original content by filmmakers and video creators. Although it's not the most popular video site on the web, it's been the first to release some widely emulated features, and has an engaged community.
One element of having a creative and engaged community, though, is that some videos are likely to rely on fair use claims. That category includes the "lip dub"-style videos that Vimeo popularized, and for which Capitol Records sued the company two years ago. One section of that lawsuit claims that Vimeo "actively promotes and induces that infringement" — under SOPA, that accusation alone would be grounds to cut them off from their payment provider.
Some rightsholders would prefer that all user-generated content sites implement content identification systems like YouTube's Content ID. However, those sorts of systems come with problems of their own, and are expensive to develop and put in place.
Here's worse news: SOPA could hurt the sites you count on now, but many of these sites will at least have the budgets to hire lawyers to fight back. But what about the small sites of today and innovators of tomorrow? Under SOPA, they may never get off the ground – and the Internet will be a less interesting place as a result. Act now so Internet innovation and expression doesn't become collateral damage in Big Media's losing battle against online infringement!
Dear designated SOPA agent for PayPal:
Pursuant to the Stop Online Privacy Act, please immediately cease processing payments in connection with www.MySpaceBook.com.
MySpacebook.com is a U.S. directed site, as defined in Section 102, because there is evidence that a portion of MySpaceBook.com is intended to offer services to users located in the United States. MySpaceBook.com is a site dedicated to the theft of U.S. property, as defined in Section 103(a)(1), for the following reasons:
- it has taken deliberate steps to avoid confirming infringement by adopting and following a copyright policy that places the burden on rightsholders to identify infringement, even though it knows infringing activity takes place on its site;
- it fails to deploy filtering technology that screens for infringement;
- a portion of its site, www.MySpaceBook.com/bigmedia, infringes Big Media's trademark rights in the term "Big Media."
In addition, MySpaceBook.com is dedicated to the theft of U.S. property because is marketed by one or more other persons acting in concert with the operator for use in facilitating infringement. For example, Joe User posted a link on his MySpaceBook "wall" to the Free Justin Bieber campaign, and encouraged others users to click on and share this link.
As a result of this activity, Big Media faces immediate and irreparable injury.
The following shows that PayPal is processing payments to MySpaceBook: http://www.MySpaceBook.com/press/releases.php?p=144261
Big Media, Inc., may be contacted at firstname.lastname@example.org
I have a good faith belief that the aforementioned activity is not authorized by Big Media, Inc. or the law.
I certify under penalty of perjury that the information above is accurate and that I am authorized to act on behalf of Big Media, Inc.
Big Media Flunky #1
Attributions: Parker Higgins and eff.org.