A Look At Three Popular Sites That May Be In Trouble Under SOPA
from the collateral-damage dept
The EFF is taking a look at some websites that may face serious legal questions and liability should SOPA become law, specifically looking at Etsy, Flickr and Vimeo. These are three extremely popular and useful sites, which most people certainly believe are and should be perfectly legal. But under SOPA, they could be declared “dedicated to theft of US property,” thanks to the broad definitions under the law. Take Etsy, for example:
Etsy is an online marketplace for handmade goods, where users can set up a storefront and create listings for things they?ve made. There are over 800,000 active ?shops? filled with these handmade goods ? far too many for Etsy to monitor manually. Further, because of the eclectic nature of goods listed, it?s difficult to technically filter through the objects listed.
All that means that it?s not feasible for Etsy to proactively prevent listings that may be perceived to violate US copyright or trademark law. That?s a problem, because under SOPA, anybody who is a ?holder of an intellectual property right harmed by the activities? of even a portion of the site, could serve Etsy?s payment processors with a notice that would require them to suspend Etsy?s service within 5 days. That means that a trademark violation in one of the storefronts could lead to payment suspension across the entire site. Unlike DMCA notices, which should be targeted to specific infringements, payment provider suspensions will likely target entire accounts. And even if Etsy protests, the bill’s vigilante provisions, which grant them immunity for choking off a site if they have a “reasonable” belief that a portion of a site enable infringement, give the payment processors a strong incentive to cut them off anyway.
The SOPA defenders in our comments will insist that Etsy should have picked a business model that doesn’t rely on infringement. Kinda shows the disconnect here, doesn’t it? Etsy’s business model has nothing to do with infringement… and that’s the problem with SOPA.
Flickr, of course, is one of the most popular photo hosting sites. But under SOPA, it’s at risk:
Like Etsy, Flickr takes copyright issues seriously, and complies with DMCA safe harbor requirements by taking down photos when it gets a valid complaint, establishing a repeat infringer policy, etc.. But it doesn?t proactively monitor its user-generated content for copyright infringement. The language of SOPA is vague enough that an individual or corporate rightsholder could claim this lack of monitoring as ?taking ? deliberate actions to avoid confirming a high probability of the use of the ? site to carry out acts that constitute a violation.? Flickr uses an ad network to place advertisements, and accepts payments for premium accounts. Both of those revenue streams could be suspended in a matter of days by a single complaint, and the process of reactivating them could be long and complex.
Vimeo is a really interesting one, since that company was sued by EMI for “inducing” infringement by having popularized “lipdub” videos. As EFF points out, that’s more than enough to have them completely shut down under SOPA.
Of course, it’s unlikely that rightsholders will go after any of these sites now under SOPA. They’re all big enough — and can afford lawyers. But there’s a real fear that the next generation of such sites will get shut down… or, worse, won’t even start up at all, due to the massive potential liability.