SOPA and Section 1201: A Frightening Combination

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One of the many serious problems with the Stop Online Piracy Act ("SOPA") (pdf) is how it tacks itself onto existing law to expand liability to people who may be three times removed from any actual copyright infringement. In § 103, SOPA wraps another layer of liability around what are called the "anticircumvention provisions" of the Copyright Act (which are found in section 1201 of the Copyright Act). The goal of the anticircumvention provisions is preventing people from circumventing technology that protects copyrighted works. Importantly, however, some courts have held that § 1201 prohibits circumvention even when the person's ultimate use of the work does not infringe copyright. So if you circumvent technology to access a work in a way that's completely legal, you might still be violating § 1201. If SOPA is passed, even more individuals and entities will get caught up in an ever-expanding net of liability, which is especially ridiculous when we're talking about a provision of the law that may not even require actual copyright infringement.

SOPA's Ever-Expanding Net of Liability

First, a recap of the offenses that § 1201 created. Unsurprisingly, § 1201 prohibits circumventing a technological measure that controls access to a copyrighted work. But § 1201 also prohibits manufacturing, offering, providing, or trafficking in a technology, product, or service that is primarily made or marketed to circumvent, or has limited commercial purposes other than circumvention. So, for example, a blog post that tells people how to break the DRM on their DVDs to watch them on a new device, or a device that's used in another device to circumvent technological protections could violate § 1201. 

Now, enter SOPA. § 103 of SOPA allows private parties to require payment processors and advertising services to cut ties with websites that are allegedly "dedicated to the theft of U.S. property." Note: this is all done outside of the court system, so no judge actually reviews any of these claims before they're enforced by the payment and ad networks. As we've pointed out before, the definition of sites "dedicated to the theft of U.S. property" is extraordinarily broad, even if we're only talking about the parts that hook onto § 1201. These include:

  1. a website that's primarily designed or marketed to offer goods or services that enable, facilitate, or commit a violation of § 1201; 
  2. a website that has limited purpose other than enabling, facilitating, or committing a violation of § 1201; 
  3. a website operator who takes "deliberate actions to avoid confirming a high probability" that the site is used to violate § 1201 (what this might mean is a whole 'nother blog post); or 
  4. a website operator who tries to promote using the website to violate § 1201.

None of these definitions require that the website has actually been used to violate § 1201. And remember, some of the § 1201 violations don't even require actual circumvention, and a circumvention violation may not require copyright infringement. So a person could be subject to having all of their payments and advertising cut off (without court oversight) by a private party even if he merely operates a website that might be three times removed from an unproven act of copyright infringement. Basically, if you might be helping someone who might be helping someone who might be circumventing in a way that might infringe someone's copyright, SOPA gives companies the power to shut down your business. If Congress passes SOPA, here's what the scope of liability will look like:

Increased Scope of Liability with SOPA and the DMCA

Anyone with even a smidgen of common sense should realize that this is absolutely ridiculous and gives way too much unsupervised power private companies.

What's worse, § 104 of SOPA gives service providers, payment processors, advertising services, search engines, domain name registries, and domain name registrars complete immunity from suit for cutting off payments and ads to a site if they reasonably believe the site is "dedicated to theft of U.S. property." This gives the intermediary the power to inflict all of the punishments discussed above even if no rights holder has filed a notice.

SOPA Hurts People Applying for Anticircumvention Exemptions

As if that weren't enough, SOPA also makes it much more difficult for people to obtain exemptions from § 1201. § 1201 gives the Librarian of Congress rulemaking authority to grant exemptions from liability for particular classes of works. For example, one current exemption allows individuals with visual disabilities to break the DRM on a book to make the computer read the book aloud to them. To obtain an exemption, a person or entity must propose the exemption to the Librarian. This involves showing the Librarian that the anticircumvention provision hinders a legitimate use of the work, and showing how the proposed exemption would solve the problem. The thing is, it's very difficult to show how an exemption for a particular technology will solve a problem if the technology has never been developed.

Under SOPA, private parties could attack technology developers (or even those who help technology developers) without so much as a preliminary hearing before a court. How then could groups like individuals with disabilities apply for exemptions if they're bankrupted for even trying to figure out how an exemption could help them? The § 1201 exemption process was created to stop the rest of § 1201 from preventing socially valuable technology from helping people. SOPA walks all over this balance for the sake of companies who think that someone, somewhere, might be infringing.

And if you're inclined to dismiss these concerns because no one would ever be callous enough to try to prevent access for the blind through § 1201, just remember that they already have. In United States v. ElcomSoft and Sklyarov, a company and its employee got hit with five criminal circumvention-related charges for developing a software that allowed the blind to read otherwise inaccessible, legally-purchased ebooks. More recently, Amazon has run into trouble with publishers who refuse to allow the Kindle to read books aloud.

SOPA and the Qualifying Plaintiff

SOPA is also extremely broad when you think of who has the right to sue for § 1201 violations. § 1203 of the Copyright Act allows "[a]ny person injured by a violation of section 1201" to sue. This is an ambiguous and potentially very broad standard, perhaps only limited by the Constitution's requirement that federal courts only decide actual cases or controversies (so the plaintiff must have a real, sufficiently direct injury). Under § 1203, a person need not be the actual copyright owner to sue someone who allegedly violated part of § 1201.

Now, combine this with SOPA's definition of a "qualifying plaintiff," found in § 103: the "holder of an intellectual property right harmed by the activities described in paragraph (1) occurring on that Internet site or a portion thereof." This only requires that the IP right at issue be "harmed," not infringed—and it might only require that the IP holder is harmed. Content companies have a storied history of declaring that perfectly legal uses under the limitations and exceptions of the Copyright Act harm their interests: uses like re-selling used books or time-shifting TV shows. This definition would seem to say that even harms caused by legal conduct are enough to allow the IP owner to shut down someone else's bank account. 

Each of these definitions are worrisome on their own, but if we add SOPA's plaintiffs on top of § 1203's plaintiffs, it's hard to imagine who wouldn't have the power to shut down someone else's business (without any sort of court approval or supervision). If all of this isn't frightening enough, just remember that this post has only gone into the interaction between SOPA and just one section of the Copyright Act. Stay tuned for more analysis of how SOPA seriously screws with the internet and uses copyright as a tool to boost censorship and stop innovation.

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