Battling Pirates – SOPA

by Mary Ellen Tomazic

Mary Ellen Tomazic

Nobody likes pirates (except in the movies), whether they are on the high seas or selling counterfeit goods on the streets.

Recorded music piracy was first stopped by an amendment to the Copyright law that took effect in 1972 (17 U.S.C. §102(a) (7)), closing the loophole that left sound recordings unprotected. The Copyright Act was loosened up in 1976 to allow artists and other creators to obtain automatic copyright in their original works of authorship without the technical requirement of placing a copyright notice on each copy of their work, to prevent it from being thrown into the public domain.

Once digital media became more and more omnipresent, it became necessary for lawmakers to keep up with the times and craft amendments to the Copyright Law to protect artists, writers and musicians from having their works taken and used by others without payment or attribution.

The 1998 Digital Millennium Copyright Act attempted to address many of the concerns brought by the new technologies by identifying them and applying the existing protections of the law to online transmissions and storage of copyrighted material. The Act added new section 512, which limited liability of online service providers for copyright infringement by reason of such transmission or storage by the provider, with the proviso in section 512(E) that presumes the authorization of the copyright holder in making the material available online.

If there is no such authorization, the service provider must respond expeditiously to remove the material claimed to be infringing upon notice from the copyright owner of his agent. (§512(c) (3)).

by Mary Ellen Tomazic

Nobody likes pirates (except in the movies), whether they are on the high seas or selling counterfeit goods on the streets.

Recorded music piracy was first stopped by an amendment to the Copyright law that took effect in 1972 (17 U.S.C. §102(a) (7)), closing the loophole that left sound recordings unprotected. The Copyright Act was loosened up in 1976 to allow artists and other creators to obtain automatic copyright in their original works of authorship without the technical requirement of placing a copyright notice on each copy of their work, to prevent it from being thrown into the public domain.

Once digital media became more and more omnipresent, it became necessary for lawmakers to keep up with the times and craft amendments to the Copyright Law to protect artists, writers and musicians from having their works taken and used by others without payment or attribution.

The 1998 Digital Millennium Copyright Act attempted to address many of the concerns brought by the new technologies by identifying them and applying the existing protections of the law to online transmissions and storage of copyrighted material. The Act added new section 512, which limited liability of online service providers for copyright infringement by reason of such transmission or storage by the provider, with the pro

If there is no such authorization, the service provider must respond expeditiously to remove the material claimed to be infringing upon notice from the copyright owner of his agent. (§512(c) (3)).viso in section 512(E) that presumes the authorization of the copyright holder in making the material available online.

The 1988 Berne Convention Treaty put many of the protections in the United States into the global arena. These changes made some “pirates” such as Napster and Grokster, which facilitated the “sharing” of copyrighted music online among millions of potential music buyers, go legitimate with the establishment of music download sites. Under settlement agreements with the music industry, Napster and others now make money selling the songs they previously helped distribute free. But all this did not stop some people from continuing to seek out ways to “share”, i.e. distribute and sell copyrighted material such as music, movies and television shows over the internet.

These individuals and companies continue to prevent the legitimate sale of works of artists and musicians through various “sharing” programs despite the admonitions of the Copyright Law against such distribution by anyone except the copyright holder. The Copyright law does not allow the owner of a single copy of a copyrighted work to make copies for sale or distribution (17 U.S.C. § 109), or to make derivative works from that copy (17 U.S.C. § 106.) And despite the Berne Convention and other treaties between the U.S. and many countries, many foreign sites offer pirated copies of American music and films, through internet sites with access to the United States market.

SOPA – the Stop Internet Piracy Act 

Under the Stop Internet Piracy Act bill, or SOPA, these sites are called “Notorious Foreign Infringing Sites” (§204) in the bill now making its way through Congress. These “notorious” sites seem to be driving the entire bill and its counterpart in the Senate (PIPA or Protect Intellectual Property Act), using overly harsh, dragnet-type provisions which propose to force internet sites to shut websites down which may facilitate access to these foreign infringing sites which offer pirated material to U.S. consumers through a link or other method.

It is not clear how many “degrees of separation” between the internet service providers or other entities would be allowed for a shutdown of U.S. sites because of distant but connected websites.

Many of the notification and removal requirements in current section §512 are duplicated in substance by SOPA, with the difference being that the service providers are charged with the responsibility of removing not only the infringing material, but of preventing access to “foreign infringing sites” that are “U.S. directed sites used by users in the U.S.”, even if only a link to such a site is available on the provider’s site.

If domestic U.S. entities such as search engines, payment sites and advertisers fail to take action upon notice from the Attorney General of access to a foreign infringing site within five days of notification, the internet sites by such action would be subject to seizure, restraining orders suspending its service, and other criminal sanctions and fines(§102.) SOPA amends the federal criminal laws on copyright infringement (18 U.S.C. §§ 2318, 2319, 2319A, 2319B, and 2320) to punish service providers that facilitate a violation of the copyright (17 U.S.C. §501 and §1201) or trademark laws (15 U.S.C. §1125, section 34(D) of the Lanham Act).

Even more disturbing are the provisions for a “market based system” (section 103 of the Act) which allows “qualifying plaintiffs”, i.e. individuals or companies which own copyrights to the materials which are being infringed or counterfeited by foreign internet sites with U.S. access, to send their own notifications and get court orders for their own injunctions and shutdowns of provider sites. There is even a provision for imposing an “appropriate monetary sanction” on entities that “foster” or fail to restrict access to foreign infringing sites (§103(4) of SOPA) to enforce compliance with the court’s orders.

This would allow the big movie corporations to enforce their copyright claims by sending their own notice to service providers and going to court to obtain their own sanctions, and not have to wait for the Attorney General to enforce the law.

SOPA also would amend 17 U.S.C. § 506(a) to expand criminal copyright infringement to performance by means of digital transmission or reproduce or distribute phonograph records by digital transmission when the total retail value of the recordings or public performances exceed $1000. Making available works being prepared for commercial dissemination over a computer network accessible to the public, such as movies after distribution for theatrical viewing but before the movie is distributed to television or by home viewing means such as streaming or DVDs, is given harsher criminal sanctions.

There are provisions in the bill that would allow the affirmative defense that the defendant provider entity does not have the technical means to comply with the law without incurring an unreasonable economic burden, but such technical limitation on compliance must be demonstrated. Also, the bill provides for some immunity for entities that took action to comply with the law and restrict access to the foreign infringing site but failed despite good faith efforts to effect compliance. Immunity is also given to entities whose customers circumvented any restriction or access to the foreign infringing site despite good faith actions to comply with the order taken by the provider entity.

Shutting Down Internet Sites

Reaching back and shutting down many branches and sites on the internet because of a limited number of offshore site is a radically overbroad reaction to the problem of piracy. Private rights of action in the bill are much more favorable to big media corporations than smaller independent companies of artists, musicians and filmmakers, whose livelihoods may be hurt much more by copyright infringement, and who may not have the means to enforce the SOPA bill’s notification provisions and seek court orders against the infringing sites. In addition, small artists may be hurt because of the monetary limitations of the bill’s provisions which require a certain level of retail value of the works in order to put the copyright’s § 506 infringement provisions into play (SOPA §201.)

The big Hollywood companies claimed in the 1980s that home recording VCRs were a threat to the movie industry, but they turned out to be a huge moneymaker for them. The rise of technology allowing the movie companies to sell downloaded movies and the worldwide popularity of this method of distribution has been a lucrative business for Hollywood. Recent amendments to the Copyright law, such as the Artists’ Rights and Theft Prevention Act of 2005 (18 U.S.C. §2319B and 17 U.S.C. §506(a)) which strengthened criminal penalties for unauthorized recording and distribution of motion pictures have helped them prevent infringement of their intellectual property.

The existing Copyright Laws with their global reach can be used effectively to combat online piracy without the wholesale censorship from the shutdown components of SOPA. Technology companies, which were not consulted in the drafting of SOPA or PIPA, can assist in adjusting and directing the existing copyright laws to squelch online piracy through system solutions rather than court ordered injunctions and fines. They can also suggest amendments to the copyright and trademark laws which will more effectively pinpoint and target the copyright infringers and counterfeiters wherever they are.

SOPA and PIPA as currently too unreasonable in their implantation and too draconian in their enforcement, and are not needed in light of the battery of recently strengthened laws which can effectively defend intellectual property rights abroad without them.

Another alternative to SOPA and PIPA is set to be introduced by Rep. Darrell Issa, R-California, the Online Protection and Enforcement Digital Trade Act (OPEN), which would make the International Trade Commission, rather than the Justice Department and the Attorney General, responsible for policing U.S. connections to foreign infringing sites. Taking this path rather than the path proposed by SOPA and PIPA would at least put the focus on the direct punishment of criminal acts, instead of the censoring of sites which may have some distant but innocent connection to the criminal acts.


Mary Ellen Tomazic is an attorney in Cleveland specializing in entertainment issue
such as copyright, trademarks, contracts and licenses for musical groups and filmmakers.