Don’t Stop at SOPA: What About Existing Law?

Who's winning, who's losing, and why.
Jan. 20 2012 4:59 PM

Don’t Stop at SOPA

SOPA and PIPA are (almost) dead. Now can we talk about the law that already exists?

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There are three general points to emphasize here. First, no one should breathe easier when advocates of PIPA and SOPA assure us that these bills target only “piracy” or “sites dedicated to infringing activity,” because copyright and trademark owners’ understandings of those terms go far beyond the core cases they use to attract public support. “Piracy,” in their view, isn’t just about counterfeit pharmaceuticals sold to unsuspecting consumers. It’s also about linking to websites or reselling authorized goods, and it could well include any unauthorized use of their work or the trademark.

Second, intellectual property law is already full of draconian measures justified on the grounds that they will be applied in only the most egregious cases. Just to name a couple of examples: Both copyright and trademark infringement can give rise to criminal liability in some circumstances, and copyright law provides for statutory damages of up to $150,000 per infringed work, even in cases lacking any evidence of harm to the copyright owner. These remedies are allegedly carefully bounded so that they apply only in the most egregious cases. But the history of IP enforcement is one of continual boundary pushing by rights holders (and the government acting on their behalf) and continual acquiescence of the courts. Despite an unambiguous statutory requirement that the government prove both that the defendant was using a mark that is substantially indistinguishable from the allegedly counterfeited mark and that the defendant’s use be likely to cause confusion, the government argues in counterfeiting cases that a mark is substantially indistinguishable when it causes confusion, effectively collapsing the requirements. Juries award huge statutory damage awards in cases with defendants who downloaded a few songs for personal use. (In one such case, the judge substantially reduced the jury’s award—though only after the third trial—reportedly making him the first judge to reduce a damage award in a copyright case.)

Given this history, and the recent efforts of ICE and private plaintiffs discussed above, there is absolutely no reason to believe any new remedial measures would be confined to the truly egregious cases on which those measures are sold to the public. Much as the Patriot Act was sold as necessary to protect us from terrorism but has in fact been used primarily in prosecuting drug cases, any new copyright or trademark measure should be expected to apply to new and unexpected cases far outside the core of either system.

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Third, and finally, anyone who has been concerned about the scope of PIPA and SOPA should not be satisfied with the defeat of those bills, or even with defeat of their inevitably forthcoming cousins. Bad as those bills are, they expressly authorize conduct that is already occurring. Opponents need to turn their attention to existing law and demand that it be scaled back as well. Otherwise their victory this week will have been a pyrrhic one.

Mark P. McKenna is a law professor at the University of Notre Dame. He teaches and writes in the area of intellectual property.

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