The Philippine Online Chronicles

As a response to moves by the United States legislature to enact S. 968 (the “PROTECT IP Act”) and the H.R. 3261 (the “Stop Online Piracy Act [SOPA]”), some of the biggest names in the Internet has joined together through a letter to express their concern.

US Companies AOL, eBay, Facebook, Google, Linkedin, Mozilla, Twitter, Yahoo!, and Zynga wrote a letter to key members of the US Congress to state opposition to the said bills.

The letter was addressed to Chairman Pat Leahy and Ranking Member Chuck Grassley of the US Senate’s; and Chairman Lamar Smith and Ranking Member John Conyers, Jr., from the US House of Representatives’ separate Committee on the Judiciary.

The PROTECT IP and SOPA are bills currently pending in the US that seeks to stop Internet piracy and Intellectual Property (IP) Rights and copyright infringement, as well as “rogue” websites based outside of the US that profit from these.

According to the Electronic Frontier Foundation (EFF), the bill uses a “market-based” approach to combating IP theft by providing IP rights-holders with the means to take action themselves, “by sending notices directly to payment processors and ad networks – like Mastercard, VISA, Paypal, and Google – demanding that they cut off all payments to the website.”

After receipt of the notice, payment processors shall only have five days to act.

With this approach, copyright owners are effectively given the means to target websites right at their jugular – the means by which they earn revenue and operate.

Abuse

According to the EFF, “The potential for rampant abuse is obvious—whether it’s a frivolous claim that wouldn’t withstand the scrutiny of the official process or an attempt to put an emerging competitor at an extreme disadvantage,” thereby giving Hollywood a chance to “break the Internet.”

For one, the bill allows for little judicial oversight as the notice submitted by IP rights-owners, and possibly copyright trolls, need not pass through the impartial judgment of a court before a payment processor follows the cut-off request.

At the same time, five days is too short a time for the payment processor to process the complaint, notify the website owner, and for the website owner to file a counter-notice. And even if a website has successfully submitted a counter-notice, payment processors are not required to respect it as “vigilante provisions… grant them immunity for choking off a site if they have a ‘reasonable belief’ that some portion of the site enables infringement.”

Moreover, even if the infringement occurs only on a portion of a page of a website, the entire site can and will be affected because there is virtually no means by which payment processors can isolate payment services to a single page of a website.

The EFF says that the bills allow a means for the US Government, copyright owners, payment processors and ad networks to create a blacklist of sites that they can target and takedown.

The US Government through the US Attorney General may also seek a court order that would force search engines, DNS providers, payment processors, and advertisers to stop doing business with allegedly infringing websites. Payment processors may also hold withhold their services from a website even if they haven’t received a notice as long as they have “reasonable belief” that a website is engaged in copyright violations.

Three big sites that could be at risk

To illustrate their arguments against the said bills, the EFF has listed three websites that could be affected: Etsy, Vimeo and Flickr.

Etsy has over 800,000 active “shops.” Such a huge number makes it difficult for the company to monitor each individually. The entire website, including the other 799,999 “stores” can be taken down if a “trademark violation” is filed against a single storefront.

Despite the fact that photo-sharing site Flickr takes copyright issues seriously and complies with the safe harbor requirements of the Digital Millennium Copyright Act (DMCA) by taking down photos that gets a valid copyright infringement complaint and establishing a repeat infringer policy, it doesn’t proactively monitor photos uploaded by its users (the billions of photos uploaded in the website makes it impossible to do so). According to the EFF, “The language of SOPA is vague enough that an individual or corporate rights-holder could claim this lack of monitoring as ‘taking … deliberate actions to avoid confirming a high probability of the use of the … site to carry out acts that constitute a violation.’ ”

Meanwhile, some videos posted on Vimeo rely on fair use claims for videos to be deemed “legal.” Among these are the “lip-dub” – style videos made popular by the site, a meme for which it was sued by Capitol Records in 2009. “One section of that lawsuit claims that Vimeo ‘actively promotes and induces that infringement’ — under SOPA, that accusation alone would be grounds to cut them off from their payment provider.”

Without a doubt, should the bills pass into law in the US, the effects shall be felt by anyone who uses and connects to the Internet.

Opposition

“We support the bill’s stated goals… Unfortunately, the bills as drafted would expose law-abiding U.S. Internet technology companies to new and uncertain liabilities, private rights of action, and technology mandates that would require monitoring of web sites,” said the Internet Companies’ joint letter.

Other online companies that have expressed opposition to the bills include BoingBoing, ArsTechnica, Tumblr, and more.

Meanwhile, international civil society and human rights groups including La Quadrature Nu, Reporters Without Borders, Index on Censorship, and the Association of Progressive Communications have also written a letter of opposition which states, "...by institutionalizing the use of internet censorship tools to enforce domestic law in the United States creates a paradox that undermines its moral authority to criticize repressive regimes.  We urge the United States to uphold its proclaimed responsibility as a leader in Internet freedom and reject bills that will censor or fragment the web."

The EFF says that the bills are so flawed that they “cannot be fixed” and must “be killed.”

Image from macrobsplace.com. Used under creative commons.