As you may have noticed, today some of the most-visited websites on the Internet are blacked out, unavailable, or otherwise focusing on protesting currently-pending legislation in the United States that may impact many businesses and how they operate on the Internet. Specifically, popular sites such as Wikipedia, Craigslist, and BoingBoing are wholly unavailable, and others, such as Google, WordPress, and Amazon, are prominently featuring commentary on the PROTECT IP Act (PIPA) and the Stop Online Piracy Act (SOPA), which are currently pending in the Senate and House, respectively.
Introduced by Senator Patrick Leahy, the Protect IP Act (PIPA) provides the U.S. Department of Justice with new tools to use against any site that “has no significant use other than engaging in, enabling, or facilitating” or that “facts or circumstances suggest is used, primarily as a means for engaging in, enabling, or facilitating” the distribution of illegal copies, counterfeit goods, or tools to defeat digital rights management systems. Courts may then, after notice to the registrant of the domain that directs to the site, (i) order DNS servers to block the offending domain name from directing users to the site, (ii) order payment providers to block all transactions with the site, (iii) order advertising services to block all advertising to the site, and/or (iv) order search engines (or potentially any other site with links to the allegedly offending site) to remove such links. The Senate is set to vote on PIPA on January 24th of this year.
Representative Lamar Smith introduced the Stop Online Piracy Act (SOPA) in the House last year, and debate in the House Judiciary Committee is set to resume this February. SOPA contains much of the same content as PIPA, and both are primarily focused on the theft of U.S.-generated intellectual property by sites based outside the United States. Defenders of these bills note the difficulties that rightsholders have had using currently-available tools to combat piracy of their content in the United States against foreign defendants, and believe that the tools provided in SOPA and PIPA will simply enable rightsholders to take some additional steps to attempt to stop such piracy within the U.S. borders. The Wall Street Journal, for example, states that “SOPA merely adapts the current avenues of legal recourse for infringement and counterfeiting to new realities,” and that “[w]ithout rights that protect the creativity and innovation that bring fresh ideas and products to market, there will be far fewer ideas and products to steal.”
There is, however, much disagreement about how to go about protecting against such piracy and whether SOPA and PIPA may have wider unintended negative consequences. Indeed, joining the outspoken show of concern has been the White House, which has recently stated that “[w]hile we believe that online piracy by foreign websites is a serious problem… we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.” Many of the Internet’s most popular websites have also expressed strong concerns: Wikipedia asserts that SOPA and PIPA, as currently drafted, could be used to force Wikipedia offline, if it were to link to a site that hosts infringing content. BoingBoing takes that concern further, alleging that the proposed legislation would “certainly kill us forever” and “unmake the Web.” While this is perhaps hyperbolic, it does highlight the risks and anxiety that are concerning web-reliant businesses during the pendency of these bills. Finally, much opposition, including by the Heritage Foundation, has focused on the perceived security risks to businesses and users that may arise as a result of the bills’ provisions.
In an attempt to find a third path, Representative Darryl Issa has recently proposed the Online Protection and Enforcement of Digital Trade Act (OPEN), which uses ITC trade protections rather than Internet structural remedies to provide new tools to combat infringement. Re:Marks covers the OPEN Act and its provisions in greater detail here. Whether the OPEN Act will impact the current discussions on PIPA and SOPA is left to be seen.
Regardless of the outcome of these three pieces of legislation, IP rightsholders and Internet-reliant businesses alike should stay aware of these bills and DLA Piper will continue to monitor the progress of these bills and report further developments here.
UPDATE (1/20/2012): The Senate vote on PIPA has been postponed from its original January 24th date pending further consideration.