December 19, 2011 7:48AM

How Would SOPA Be Used?

Proponents of the Stop Online Privacy Act (SOPA) and its Senate counterpart PROTECT-IP often affect incredulity that anyone would "defend piracy" by describing their valiant attempts to stamp out "rogue sites" as a threat to free speech or innovation. Recording Industry Association of America head Cary Sherman, for instance, recently insisted to The New York Times that the bills are "specifically designed to focus on the worst of the worst sites whose model is predicated on theft." This would be more convincing if the content industries weren't so clearly continuing their long, proud tradition of making aggressive and overbroad copyright claims that would impede speech and innovation.

In the 80s, Universal Studios famously sued Sony to block the sale of Betamax VCRs, which could be used to "facilitate" the infringement of copyrights in shows and movies aired on broadcast television. Blocking VCR sales, of course, might also have strengthened the market position of the DiscoVision laserdisc system being developed by MCA, Universal's parent company. The Supreme Court eventually vindicated Sony, but Universal did manage to persuade one lower court to rule in their favor. If SOPA's blocking provisions could be implemented in the physical world, every VCR (and maybe every Sony product) would have stopped working after that first favorable ruling, until Sony could meet the burden of proving its innocence in a U.S. court. Of course, under a rule like that, consumers might have been wary of buying a VCR in the first place.

And today? It's the Universal Music Group heading to court, after using a dubious copyright claim to take down an embarrassing video in which pop stars sing the praises of the site Megaupload. Megaupload, you see, is a file locker site, and the recording industry has made it crystal clear that it's at the top of the industry's list of "rogue sites" that should be targeted under SOPA. Indeed, when the content industries talk about why SOPA is needed, they invariably cite file lockers generally as the very epitome of a "rogue site." It is, therefore, a little awkward to have their own artists pointing out the obvious: File lockers can be used by pirates to share infringing files, but also host an enormous amount of perfectly legitimate content, uploaded by users who would be effectively silenced (and cut off from their own files) if the entire site were blocked. Similarly, the recording industry thinks copyright gives it the power to veto cloud-based music storage services, which serve as a kind of virtual hard drive from which users can remotely access and play their own legally purchased and uploaded music. It's a great convenience for consumers—but the labels think they can use copyright to stop it unless they're paid a cut.

We might also look to some of the seizures of U.S.-registered sites by Immigration and Customs Enforcement. The sports site Rojadirecta—registered in the U.S. but based in Spain—was seized on the theory that linking to infringing video of sporting events hosted elsewhere on the Internet is enough to trigger forfeiture, even though Spanish courts have repeatedly ruled that such conduct (however shady it might seem) is legal in Spain. As lawyers for the government argued, invoking the very same statute that would provide the basis for SOPA censorship:

"[A]ny property used ... in any manner or part to commit or facilitate the commission of an offense [such as criminal copyright infringement]" is subject to forfeiture.... Moreover, it is "[i]rrelevant whether the property's role in the crime is integral,essential or indispensable,"... and a single incident of facilitating criminal activity is sufficient to trigger forfeiture.

The government further notes that they're not directly charging Rojadirecta with criminal infringement (nor indeed do they ever have to bring such charges), which means no need to meet that pesky "beyond reasonable doubt" standard—or even "probable cause". All the government needs for forfeiture, they assert, is a "reasonable belief" that a domain is being used to "facilitate" criminal infringement. This despite the fact that, in the context of obscenity laws, the Supreme Court has held that "Mere probable cause to believe a violation has transpired is not adequate to remove books or film from circulation." Now, Rojadirecta's business model is certainly shady, and maybe they're even guilty of criminal infringement. But are we really comfortable with an entire domain, including vibrant discussion forums that clearly enable protected, non-infringing speech, being blocked pursuant to a "reasonable belief" standard, forcing the company to hire U.S. lawyers and prove their innocence to win the right to speak to U.S. users?

Then there's the case of, a hip hop blog seized for over a year by the government for hosting infringing music files. Except it turned out that those files had actually been provided by PR firms, working for the music labels, who hoped blogs like Dajaz1 would circulate them to create buzz for up-and-coming artists.  Oops!

As legal scholar Jason Mazzone has amply documented, the use of dubious copyright claims to chill legitimate speech is depressingly common. The voting machine manufacturer Diebold has tried to use copyright to shut down whistleblower sites that published internal e-mails highlighting security vulnerabilities in software that could determine the outcome of elections. The Church of Scientology has similarly invoked copyright to stifle criticism. In Russia, political opposition groups are routinely raided under the pretext of searching for copyrighted software. Research suggests that most copyright takedown claims to search engines like Google are issued by companies targeting their competitors, and that nearly a third of takedown notices under the Digital Millennium Copyright Act lack a clear basis.

I could easily fill a dozen long blog posts with examples, but let's cut to the chase. Major movie studios and music labels draw a lot of water in D.C.: The fact that a bill as massively unpopular as SOPA is even being seriously considered, let alone likely to pass, is proof of that. They will effectively control which foreign domains the Justice Department chooses to block directly, and shop around for friendly judges amenable to rubber-stamping orders in civil litigation that require payment providers and ad networks to cut off disfavored sites.  The likely targets are their competitors, whether the copyright claims are valid or not. Sites like YouTube that provide entertaining user-generated videos are one less reason to pony up for the next lackluster Adam Sandler movie. Sites that give musicians a way to gain exposure to fans and market their albums without giving a cut to the increasingly redundant middleman threaten to make the labels  obsolete.  And if open platforms invariably end up hosting some infringing content uploaded by users? Well, that's as good a pretext as any for shutting down the competition.

Why do critics of SOPA worry that the bill will threaten legitimate speech and innovation?  Because its supporters have spent three decades providing overwhelming justification for that fear at every opportunity.  If I may end by making a bit of "fair use" of the genius of former Smiths front-man Morrisey:

He was a sweet and tender hooligan, hooligan

He said that he'd never, never do it again

And of course he won't, oh, not until the next time

Empowered with the ability to threaten blocking of entire domains, I'd rather not see what the copyright hooligans do "next time."