Under SOPA, "Justin Bieber Would Be In Jail"

As a journalist who has watched circulation of newspapers collapse over the last 10 years, I initially thought that the Stop Online Piracy Act (SOPA) might be a wonderful thing for print media companies. Alas, after reading the bill, I now know it has nothing to do with print media companies, per se, and is not about to save The New York Times from its circulation problems due to competition from the web. SOPA was mainly designed by the big content producers in Hollywood, and their record label spin-offs, as everyone interested in the subject knows by now. I spoke to a few lawyers in-the-know about where SOPA goes from here, following massive protest against its passing; and what, if anything, is good about it. Here’s what they had to say.

“If this law was enacted years ago, a guy like Justin Beiber would go to a federal prison for five years because he was singing unauthorized versions of Michael Jackson songs posted on websites around the world,” says Andrew Bridges, a lawyer at Fenwick and West in San Francisco. He had just flown in from Washington DC talking about SOPA to a variety of government employees after spending time last week talking to White House employees about the bill.

Of course, Justin Beiber is not going to jail for singing Jackson covers, and YouTube in China is not going to go black because of it. Beiber has only come out against the illegality of streaming copyrighted works under SOPA.  The bill right now stands in limbo.

The Hill reported that House Judiciary Committee Chairman Lamar Smith (R-Texas) saying on Friday was postponing bringing SOPA to a vote and would have to retool parts of the bill. “I have heard from the critics and I take seriously their concerns regarding proposed legislation to address the problem of online piracy,” Smith said. “It is clear that we need to revisit the approach on how best to address the problem of foreign thieves that steal and sell American inventions and products.”

But is SOPA truly DOA, dead on arrival, when it reaches Congress? “It’s too soon to tell,” says Bridges who has litigated opposite the motion picture industry. “I think that Hollywood is embarrassed at having been called out on such a poorly intentioned set of laws and I expect to see them pull out all the stops to ram this through. These guys have an army of lawyers who do not fool around. They have tried to ban MP3 players, Blockbuster, Netflix.Piracy is a problem, but how big of a problem is it? Is it equivalent to murder or is it more like graffiti? You can eliminate shoplifting by making sure everyone goes through a strip search whenever they leave the store, but society doesn’t want to be put through that. That’s SOPA. There are already adequate anti-piracy laws on the books. We don’t need this one.”

The bill’s authors, and even President Barack Obama, think we do.

SOPA is different from current copyright infringement laws, like the Digital Millennium Copyright Act (DMCA), because it allows U.S. judges to shut down and/or fine foreign-based websites that are intentionally distributing and promoting copyrighted material. They don’t have to be making a profit off that material, they just have to be distributing it, or even linking to it.

The White House’s position is that foreign-based piracy is a serious problem harming American interests and existing laws are inadequate to address the problem.  SOPA would allow for provisions that require advertising networks, payment processors like PayPal and the credit card companies and search engines to take action against sites hosting infringed material. They could be held liable. The concerns are over making sure the legislation is tailored to do what it is supposed to do, without unintended consequences in the nature of improper censorship, increasing security risks, or throttling legitimate innovation, says Hillel Parness, an intellectual property rights lawyer at Robins, Kaplan, Miller & Ciresi in New York.

“People are convinced that Obama is going to veto this bill, but he has never said that. The White House may be laying political cover so when they actually do support it, they are supporting a bill that does not harm the robust marketplace for legitimate intermediary internet services,” Parness says, filing through the 71 page SOPA document as he explains how it works after being revised in December.

Two people can bring a lawsuit against an infringing site. A public person, mainly a corporation, or an Attorney General. Both have to satisfy that the site is foreign and is impacting U.S. corporate interests. If the Attorney General indicts a foreign site entering the U.S., he can bring a lawsuit against that site, not against the search engine where the site can be found. A judge can then issue a temporary restraining order on the website, or a portion of the site hosting infringing material. The judge has a lot of discretion as to how strong the order will be, including how it will go after intermediaries like credit card companies, search engines and advertisers.

The private right to action requires a company to convince a judge that a foreign site is infringing upon its copyright and intellectual property. If the judge agrees, the company can take civil action against the infringing foreign site. It also means a company like SOPA-supporter Rupert Murdoch’s News Corp (NWS) could serve the order to MasterCard and Doubleclick for working with the site, but he cannot go after the search engines. The government, however, can.

“If a foreign website is proven to be a host for pirated 20th Century Fox films on a regular basis, it could find itself in very big trouble,” Parness says. “Murdoch would have the legal rights to go after advertising networks that run the banner ads. He could serve them with the court order to stop advertising on that site and he could do the same for Visa. But the way I interpret the law, and all of this is open to a court interpretation, Murdoch cannot go after the search engines. An Attorney General can. And that would require Google to spend a lot of time on a technological fix making sure that site doesn’t appear on its search engine.”

It might not appear on a U.S. search engine, but it will on a foreign search engine, or even in the underground internet and through usenet groups. In short, stopping online piracy is a lot like Bridges’ comment on stopping shoplifting. So you set up a TSA body scanner outside the Mall of the Americas and every Macy’s in the country, but what about the mom and pop supermarkets, the local grocer, the hardware store in Waverly Place?

Thursday’s shut down of the cyberlocker website Megaupload is seen as one example of what SOPA might look like in action. Megaupload is a U.S. registered domain, so it does not qualify under SOPA law because it is not foreign.  The same goes for PirateBay.org, also a U.S. domain.  Pirate Bay’s team is more global and not located in the U.S.  Despite Megaupload’s run in with the Feds this week, they seem confident they can survive SOPA.

“SOPA can’t do anything to stop Pirate Bay,” they said in a press release Jan. 18. “The worst case we’ll change top level domain from our current .org to one of the hundreds of other names that we already also use. In countries where Pirate Bay is blocked, China and Saudi Arabia springs to mind, they block hundreds of our domain names. And did it work? Not really. To fix the “problem of piracy” one should go to the source of the problem. The entertainment industry say they’re creating “culture” but what they really do is stuff like selling overpriced plushy dolls and making 11 year old girls become anorexic. Either from working in the factories that creates the dolls for basically no salary or by watching movies and tv shows that make them think that they’re fat.”

Nevertheless, over the last several years, the entertainment industry has gone after companies seen stealing their content. Under the DMCA, Viacom is going after YouTube in a New York federal court. Universal Music Group is going after Veoh in California. There is roughly 48 hours of new video being uploaded to YouTube every day and some of that is probably stolen content. Under the current laws, the owner of the copyright can call YouTube and tell them to take it down.

So what does the entertainment industry need now that it doesn’t already have? Mostly the right to go after foreign websites.

“Groups like the Record Industry Association of America are after vigilante justice,” says Bridges, who beat them in a case to ban MP3 players from the market.

The U.S. government, too, is going after people accused of violating copyright. The hip-hop blog dajaz1.com was taken down in a raid by U.S. Immigration and Customs Enforcement in 2010 and only recently was returned to the web without any recompensation for the owner’s losses. “The government asked for the seizure based on the allegations of copyright infringement of four songs to which the site allegedly linked,” says Bridges, the site’s lawyer. “The government spent a year trying to make the case, apparently realized it could not make the case and they just said never mind.”

Tech problems, outrageous lawsuits, and the entertainment industry’s penchant for lawsuits that force millions in damages on illegal purchases valued at just a dollar a pop are just some of the obstacles to getting SOPA pass Congress. It might still happen yet. Though Justin Beiber won’t go to jail if he sings a Michael Jackson song on Youku.cn.

“The biggest problem with SOPA is that it was written by people who don’t know how the internet works,” says Jorge Espinoza, a former computer programmer turned intellectual property attorney in Miami at Espinoza Trueba P.L. “This law will hurt a lot of smaller start-ups that might be linking to foreign sites that one day are nabbed in a SOPA case. They can be served a take down notice. They are not going to have the money to defend their innocence. To stay on top of things, they’ll have to monitor all of these links and that is an unrealistic and enormous burden. I think the goal, to control foreign piracy of U.S. goods, is a good goal. The problem is that there is a lack of appreciation on how the internet works. There are simply no consequences for abuse if someone is shut down by mistake under SOPA.”