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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Opposition to the Protect IP Act (“PIPA”) and Stop Online Piracy Act (“SOPA”) reached a fever pitch this week, following a coordinated effort by a number of technology companies and technology-related websites that included a day-long Internet “blackout” in protest of the proposed bills. And the opposition seems to have been remarkably successful, with the White House announcing its opposition to the bills and so many senators and representatives—including many former co-sponsors of the bills—withdrawing their support over the last few days that both the Senate and House have shelved consideration of their respective bills.

Thank goodness. These bills are terrible policy and they have very serious constitutional infirmities. Among other things (and there are many other things), these two bills empower the attorney general to have entire websites taken down based only on application to a court and an ex parte hearing (meaning a hearing at which the defendant is not present), flagrantly violating the Supreme Court’s prior restraint doctrine. They also allow courts to order Internet service providers to stop recognizing sites deemed “dedicated to infringing activities” in these ex parte hearings (of which there is no apparent opportunity for review). This remedial approach presents a clear threat to the Internet’s architecture and, according to the country’s top cybersecurity experts, greatly increases security and privacy risks. These and other problems have been well covered, and I will not belabor them here.

Rather than launch into new discussions of the somewhat-less-bad replacements for PIPA and SOPA that will inevitably be introduced, I’m hoping this week’s backlash will focus future discussion on the many ways in which intellectual property law is already causing the harms that made SOPA and PIPA so terrifying. Because many of the objectionable features of those two laws are already in use. It’s time to talk about that.

Even before SOPA and PIPA, the government began claiming authority to seize domain names and make their content disappear without notice or a hearing. Indeed, Immigration and Customs Enforcement has already seized hundreds of domain names without any express statutory authorization, sometimes later commencing actions under civil forfeiture laws, but sometimes simply holding those domain names without filing charges. Many of these domain name seizures, it seems clear, were essentially carried out at the direction of private content owners. Indeed, ICE even announced one set of seizures “on a Burbank soundstage (Walt Disney Studios) flanked by members of the Motion Picture Association of America.”

Supporters of SOPA and PIPA have claimed those bills target only “foreign rogue sites.” That is largely untrue, since neither bill limits the new private remedies to foreign sites. But to the extent it is true that the effect of these bills would be felt primarily by foreign sites, it is only because the government is already seizing domestic domain names (and, in the government’s view, a domestic domain name is any domain name that uses a U.S.-based TLD like .com or .net—even those clearly directed at users in a foreign country). Likewise, even without SOPA or PIPA, private parties have persuaded courts to issue injunctions (again, frequently ex parte) which include orders to non-party registries, registrars, and/or search engines to take precisely the same sorts of technical steps SOPA and PIPA would authorize. (The authority under which a court can order a nonparty to take such steps is a mystery.)

It would be one thing if these seizures or the injunctions entered by courts in cases of private enforcement really were limited to the most egregious cases—those involving only “rogue” sites “dedicated to infringing activities.” But they often have not been. In some cases, ICE has seized domain names, held them for many months without any notice to the owner, and then never filed charges. Why not? Because it turns out the domain name owner had, in fact, done nothing wrong. Oops. Even when it’s not making mistakes—mistakes, by the way, that can be avoided with a little due process—ICE has acted aggressively toward websites that are far from the core of copyright infringement. For example, ICE has seized domain names on the basis that the websites at the seized domain names linked to other sites that contained infringing material. Courts have generally not considered mere linking sufficient to constitute direct copyright infringement even on the civil side. Under certain circumstances, linking could give rise to contributory infringement. But contributory copyright infringement has never been thought to give rise to criminal liability, and criminal conduct is necessary for the proper use of civil forfeiture statutes. ICE has smuggled in a significant expansion of criminal liability under cover of enforcement against the “worst of the worst.”

The same sort of thing has happened in cases of private enforcement, where courts have ordered search engines or other Internet-related nonparties to block access to a site. Nor is this limited to copyright cases: ICE has seized the domain names of clothing resellers on the grounds that these sites were selling counterfeit products, without any apparent sensitivity to the fact that trademark law actually permits resale of branded goods in most circumstances. Here, too, ICE has worked a significant expansion of the scope of trademark law while pretending only to be enforcing the rules against those easily classified as rogue websites.

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.

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.

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