The proposed legislation goes by many names— COICA, PIPA, SOPA—but the goal is clear: protect intellectual property and prevent online piracy. Congress has made big moves this year to push its anti-piracy agenda. Both the House and Senate have introduced bills that purport to regulate the Internet, while modernizing our criminal and civil laws to meet changing technology and “bad” consumer social habits. The two recent iterations of these bills are PIPA and SOPA. What affect will these proposed bills have on the music industry? Lets find out.
Senate Judiciary Committee chairman Senator Patrick Leahy (D-Vt.) introduced the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP Act or PIPA, for short) on May 12, 2011. The purpose of PIPA is to regulate “rogue websites” or those that offer unauthorized movies, TV shows, music, and other copyrighted material. PIPA authorizes the United States Department of Justice to seek an injunction against “nondomestic domain name[s] used by an Internet site dedicated to infringing activities.” The bill also requires financial transaction providers and Internet advertising services, which knowingly service an infringing website to “take technically feasible and reasonable measures” to prevent providing its services to the website.
PIPA has yet to reach the Senate for a vote because of Senator Ron Wyden D-Ore., who filibustered, or put the bill on “hold,” preventing it from moving to the Senate floor. Senator Wyden agrees with the underlying premise of the bill, but believes that PIPA’s implementation is “overreaching.” The last major action on PIPA was a report by Senator Leahy on July 22, 2011.
On October 26, 2011, the House introduced its own version of PIPA, H.R.3261 or the Stop Online Piracy Act (SOPA). The framework of SOPA is similar to the PRO-IP Act of 2008 and PIPA. The purpose of SOPA is also aimed at shutting down rogue websites. However, the House version goes a step further than the Senate version and allows private companies to sue Internet service providers (ISPs) for unknowingly hosting content that infringes intellectual property — a protection currently provided for by the Digital Millennium Copyright Act, which shields ISPs from civil liability if they remove the problematic content immediately after notice.
Opponents characterize the proposed legislation as the “great firewall of America.” The legislation would allow the attorney general to almost unilaterally blacklist and block sites that it determines are infringing copyright law. For example, SOPA/PIPA would likely shut down or block music locker websites such as RapidShare or MegaUpload from U.S. users. The proposed legislation would also likely shut down other websites that host content from those websites, i.e BitTorrents, and your favorite website to find new music. A record label would simply need to say the word – “this website has uploaded our music without permission” – and, if the website could not prove that it did not then poof! no more music website, even if the allegation wasn’t necessarily true, for example, if an artist uploaded the content him or herself. Opponents suggest that there is too much room for abuse. In an open letter to Congress, prominent IP scholars including, James Grimmelmann and Yochai Benkler, suggest that the legislation could block entire domains, suppress and/or violate “America’s free-speech principles,” and “undermine the government’s credibility in promoting free speech principles around the world.” Even House Minority Leader Nancy Pelosi (D-CA) has joined the opposition with her hashtag: “#DontBreakTheInternet.”
Proponents acknowledge these shortcomings, but suggest that the legislation is narrowly-tailored, aggressive, and necessary. In response to the argument that SOPA would create an “Internet Blacklist,” proponents contend that first amendment rights and due process are protected because it is only targets websites engaged in facilitating criminal activity. Proponents also contend that the protection provided by the DMCA is insufficient. Representative Lamar Smith, SOPA’s co-sponsor, suggests that the DMCA provides no effective relief when a rogue website is foreign-based and operated like the PirateBay – the 89th most visited site in the U.S.
So there it is. The lines have been drawn in the sand. Unfortunately, a reasonable solution or compromise has yet to be seen. Until such time, this fight will live to see another day. Stay tuned. . . .