Post

SOPA and Section 1201: A Frightening Combination

October 28, 2011 , ,

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.