Stopping the Stop Online Piracy Act

In several recent postings (here and here, for example) I called on all interested persons to come to the Internet’s defense against a spate of truly dreadful bills now making their way through Congress (the “Protect IP Act” and SOPA, the “Stop Online Piracy Act”). Larry Downes, always a thoughtful voice on tech matters, has an interesting piece in Forbes about the rather astonishing outcry that the bills have engendered. As someone who’s been doing Internet law for almost 20 years, I can’t remember any issue galvanizing public opinion in quite this way since the 1996 “Communications Decency Act” [outlawing "indecency" on the Net -- good luck with that!]. It’s quite gratifying, and something of a turning point, I think, in terms of the politics of the Net, and it’s gratifying to have played a small part to help generate the current outcry about these truly egregious bills (Mark Lemley, Dave Levine, and I having written a Law Professors’ Letter in opposition that generated over 100 signatures — and, according to the counter at Scribd.com, has been downloaded over 50,000 times already . . . ) I’m pretty gratified; once I saw the full-page ad in the Times a few weeks ago, signed by Google, eBay, Yahoo, Facebook, AOL, Twitter, Zynga, and several other tech giants, stating their opposition to these bills, I began think we might actually have a good chance of winning this one and saving — seriously — the Internet. I think the copyright interests may look back at this battle and realize that they overstepped; galvanizing Google, Facebook, Twitter, eBay, . . . into action is not going to help their cause much, I don’t think.

[And if you're not aware of how serious a threat these bills are to the Internet's technical, commercial, and economic infrastructure, consider this. Under SOPA, intellectual property rights holders can proceed vigilante-style against any allegedly infringing foreign websites, without the need for any court hearing or judicial intervention or oversight whatsoever. SOPA establishes a "notice and take-down" scheme under which an IP rights holder need only notify banks, credit card companies, Internet advertisers, and Internet search engine operators, in writing, that he/she has a “good faith belief” that an identified Internet site is “primarily designed or operated for the purpose of” infringement. The recipients of the notice will then have 5 days to cease doing any business whatsoever with the specified site, taking all “technically feasible” steps to prevent it “from completing payment transactions” with customers, from “making advertisements available” to the site, and from “being served as a direct hypertext link” from within any site under the recipient’s control. And all of this based on nothing more than a written notice delivered by the rights holder, which no neutral third party has even looked at, let alone adjudicated on the merits. If that's "law," I'm the Pope. Imagine if we had that in the non-virtual world:

A guy walks into a bank. He hands the teller a note. Sweat begins beading on the teller's forehead, and he takes the note to the bank VP. The note reads: "Jack Johnson's been stealing my hogs. Freeze his bank account." And the bank has five days to comply!!

It's not law - it's a kind of thuggery, and it will make the Net a much, much less vibrant place (and a teeny bit safer for copyright holders - if that) if it is enacted.

UPDATE: Marty Schwimmer, an experienced copyright and trademark attorney, sent me the following revision to my "guy walks into a bank" description of SOPA, which, in the interest of airing other views, I present below. Obviously, we disagree - I still believe a law permitting private parties to create liability for other persons based on nothing more than their say so and a "notice" is a form of lawlessness and thuggery - but here's Schwimmer's take on it:

I have been a trademark and copyright attorney for 24 years; have utilized the DMCA many times and have co-authored an article for the Trademark Reporter analyzing the DMCA in the context of whether notice-and-takedown should be extended to trademarks (101 TMR no 1 at page 14). I have defended US IP owners against infringements by non-US entities. If I wanted to use a bank analogy to fairly represent the majority of instances in which notice-and-takedown would be utilized, it would read something like this:

“Someone using the name of Jack Johnson has been stealing my hogs. I can’t verify his true name or address because there is no enforcement of accurate whois information. I will never recover damages or be able to enforce injunctive relief against him. In fact, I may have already received a permanent injunction(s) against this very guy, previously, and I wouldn’t even know for certain. Furthermore, any service provider that he (or she or they) rely upon in their home country, will ignore any US court order I obtain. And while I will explore suing [them] in their country, legal and political considerations make that a low probability option.

And so, as you are “Jack’’s” payment processor receiving approximately 3 (or more) % of the gross revenue from his stolen hogs, and because you have some form of accurate contact data (and bank details) for this guy, I am putting you on actual notice of a specific infringement (and providing you the information that you need to assess my claim). If you don’t comply with my request, then, in order to take action against you, go to Court, prove the direct infringement against “Jack,” and then prove your intermediate liability (which among other things would involve proving that you were more than a passive bank receiving deposit, but a payment process having access to the details of all transactions) (see Gucci v Frontline). Given the resources you have to defend this as a financial services provider (see Gucci v Curveal), I doubt that there are beads of sweat on your forehead as you read this.”

I think that your note to the bank scans better, but I think that my version is a more accurate reflection of the motives of the IP holder and the circumstances under which they would attempt to utilize notice-and-takedown.