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January 23, 2012 / Erach Screwvala

The SOPA Soap…Part 2…the internet strikes back

In Part 1 of our analysis of SOPA/PIPA we reviewed the enforcement mechanisms in context with existing law. Following extensive protests, including the blackout of Wikipedia, Reddit, and others, Congressional support for SOPA and PIPA has quickly eroded. While these specific bills are not likely to ever hit the floor of the House and the Senate, it would be naive to assume that the issue will simply fade away. So, in Part 2 of our look at SOPA/PIPA, we will look at three specific criticisms that led to the massive protests and, ultimately, the demise of the bills.

The Electronic Frontier Foundation has objected to the sections in the bills that immunize companies for taking voluntary action against suspected infringers, dubbing it the “vigilante” provision. Consider a parody.  A parody uses copyrighted material to poke fun at an artist, style, or genre. By necessity, a parody requires an artist to copy the original work. Courts grapple with parodies and other fair use defenses all the time. I’ve discussed fair use here, and here. The immunity provision empowers ISPs and search engines to take judicial action to determine what is and what is not fair use.

The Center for Democracy and Technology has pointed out that certain provisions of the bill would force websites with user-generated content to concoct expensive monitoring devices to root out infringement. Specifically, a website can run afoul of SOPA/PIPA if they take “deliberate actions to avoid confirming a high probability” of infringing conduct. It is debatable whether the failure to take affirmative steps to monitor infringement would  amount to deliberate avoidance. However, the answer to that question could have enormous consequences on cloud computing providers, particularly the willingness of investors to fund new infrastructure.

Finally, the Electronic Frontier Foundation has also argued that existing security software could be illegal under SOPA/PIPA. Developers of proxy, privacy or anonymization software could be required to develop mechanisms to block access to websites shut down under SOPA/PIPA or face action by copyright owners or the Justice Department. The bills do provide for an opportunity to argue that such mechanisms would be technically infeasible, but the viability of such arguments could only be resolved by a Court in litigation.


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