Copyright Lawyers Prime The Pump For The Return Of SOPA

from the because-of-course-they-would dept

Since the death of SOPA/PIPA two and a half years ago, Hollywood (and Congress) have tiptoed lightly over any proposed copyright reform, insisting that they’ve learned their lesson and that they won’t try to bring back SOPA. Of course, with the big comprehensive copyright reform effort going on in DC, you can totally expect that the legacy copyright industry will do its best to put in place the parts of SOPA that it most wanted. That process appears to have kicked off in earnest last week, with the IP Section of the American Bar Association releasing a White Paper entitled A Call For Action For Online Piracy And Counterfeiting Legislation. I should warn you that, according to the genius intellectual property experts at the ABA’s IP Section, clicking on that link may be a violation of their copyright. It’s not, of course, but that doesn’t stop them from claiming it is at the beginning of the paper:

© 2014 American Bar Association. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. For permission contact the ABA Copyrights & Contracts Department, or via fax at 312 988-6030, or complete the online form at

Clicking on the link they put on their site would be “transmitting” the document by “electronic” means “without the prior written permission of the publisher,” even if you could argue that they gave another form of permission by posting the damn thing. Oh, and of course, by copying that little tidbit and posting it here, I have also violated the bogus rules claimed in that very snippet.

You’d think that the IP Section of the ABA would understand things like fair use and copyfraud, but apparently not. Anyway, the document itself weighs in at a hefty 133 pages, and you can go through the whole thing, but it’s basically setting the stage for trying to make internet companies copyright cops again, just as in SOPA. It talks up the problem of “Predatory Foreign Websites,” (PFWs — which is apparently the new nickname for “foreign rogue websites” that were the central focus of SOPA and PIPA. Then it talks about “intermediaries” (i.e., internet companies) and how those poor, poor Hollywood copyright lawyers can’t really go after those “PFWs” and the best thing to do is to… put the liability on the internet companies themselves. Because of course that’s been the plan all along: make Silicon Valley Hollywood’s private copyright cops, and if they don’t do a good job, fine ’em to hell.

First, it suggests that, even under existing law, courts could order internet companies to block infringing sites or activity under some unique, but barely tested, parts of the law. But, of course, it says this is not enough. It’s main recommendations are summarized as follows:

Supplement the following civil remedies (which are already available under U.S. law to redress piracy and/or counterfeiting that occurs within U.S. borders) to redress online piracy and counterfeiting undertaken by PFWs, in cases where the intermediary(y)(ies) in question does not taken action voluntarily:

  1. injunctions directing financial payment processors to freeze the assets of PFWs and to cease doing business with such websites;
  2. injunctions preventing online advertisers from paying PFWs or from displaying further ads on those websites;
  3. injunctions requiring search engines to remove PFWs from paid, sponsored links;
  4. injunctions requiring website hosts to cease hosting PFWs;
  5. injunctions permitting the seizure and destruction of counterfeit or pirated goods, or their delivery to rightsholders who are willing to bear the shipping and handling costs;
  6. injunctions requiring the immediate removal of pirated works and/or content, counterfeit marks, logos, insignia, or trade dress that have been made available, displayed, or otherwise promoted by PFWs; and
  7. monetary damages in the form of disgorgement of profits of the PFWs achieved as a result of the illegal activity, which shall be paid to the rightsholder from the assets frozen or advertising/sponsored links revenue that had been withheld by the intermediaries as described in points 1-3 above.

In short: make internet companies kill copyright infringement — collateral damage, be damned.

It goes on to bring back the “private right of action” part of SOPA, which was so problematic and so egregious that even Lamar Smith dropped it midway through the process in the original SOPA fight, in an effort that he hoped would allow the rest of the bill to go through. A “private right of action” would basically let companies declare some website a “Predatory Foreign Website,” allowing them to then force internet companies to block them or take other actions against them, or risk significant liability. Basically, it’s a private right of censorship that the entertainment industry could use against innovative website they don’t like. While the paper admits that this was controversial in SOPA, it offers a modified “hybrid solution” that it thinks works better:

[T]he IPL Section recommends a hybrid solution, by which rightsholders would be allowed to seek direct remedies directly against PFWs (who would have notice and an opportunity to be heard, including as to any objection to being characterized as a PFW) and direct remedies against one or more of the U.S. intermediaries identified above. This provides full due process rights to the alleged PFW, both in cases where it is sued directly and in cases where its status as a PFW is critical to the issuance of an injunction against one or more of the intermediaries that it uses. Such a procedure is a little less convenient for rightsholders, but it allows the site itself the maximum due process to defend itself against both the onus of being labeled as a PFW (and resulting liability) and the cutoff of financial support from U.S. intermediaries.

See? No problem. If you’re running an innovative website out of, say, Malaysia, and a Hollywood studio declares you a “Predatory Foreign Website,” I’m sure you can just hop on the next flight to the US to defend yourself in court, right? Easy!

The paper then looks at “government” solutions, and praises ICE for its infamous domain seizure program, which we’ve reported on extensively. At least the paper acknowledges the fact that this program resulted in the seizure and censorship of perfectly legal websites like Dajaz1 and Rojadirecta for over a year, but brushes them off as not that big of a deal, beyond being a potential PR problem:

The circumstances surrounding Dajaz1 and have achieved a level of notoriety among Internet freedom and civil liberties advocates that far surpasses their significance. Such incidents are few in number relative to the amount of seizures overall

I’m curious how completely shutting down and censoring a popular internet publication and a widely used internet forum full of protected speech, both for over a year, without any legal basis whatsoever, could possibly lead to people overstating its significance. It seems like those situations have been completely understated in significance. If they had been, say, an actual newspaper, and the government had gone in and seized the printing presses for over a year, without a reason or any recourse, and then the government just returned the presses over a year later without anything as much as an “oops, sorry,” would people have just let it go, the way it happened with both of those other websites?

Besides, the ABA report conveniently leaves out that those weren’t the only domains that were seized in a faulty manner. There were at least two others I know of that protested the seizure on the same basis, but last I’d checked, the government was still holding onto both of those domains and simply refusing to respond to the lawyers associated with either site.

The one real concession the paper seems to make is that the DNS blocking provisions of SOPA and PIPA were probably a bad idea.

There’s much more in the paper, and it’s well worth reading, to get a sense of what the ABA IP Section (a lot of entertainment industry lawyers are in there) are thinking about how to get a SOPA-like law through in the future (probably during the comprehensive copyright reform effort). To be fair, the paper is fairly comprehensive in its thinking, and at least mentions people being opposed to its reasoning and why (it even cites Techdirt multiple times…). It also pays some lip service to actually paying attention to those concerns, but nearly all of the actual recommendations bring back SOPA-like ideas. It’s troubling to see that the overall lesson of SOPA was clearly not learned, and they’re clearly planning to try, try again.

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Comments on “Copyright Lawyers Prime The Pump For The Return Of SOPA”

Subscribe: RSS Leave a comment
Anonymous Coward says:

Sadly, people won’t care unless it directly and immediately affects them. Unless Facebook, Twitter, Google, Wikipedia, Youtube or some other domain used by millions on a day-to-day basis gets taken down by an ‘anomalous’ automated fraudulant DMCA notice or property seizure, they don’t think it’s important or matters.
People don’t give a damn about anything but themselves.
They just believe whatever they’re told to believe, even if presented with hard science to prove otherwise.

Unless there are widespread systematic changes, this will keep happening. We’re going to vote the red or blue flavored liar into office, who is going to populate his (or her) staff with more liars, who are going to take money for influence from rich liars, who are going to push their own interests while telling everyone it’s their interests.
A bill gets shot down? No problem, just keep introducing it until it passes or wait for the musical chairs to change and try again.

Vel the Enigmatic says:

I didn’t bother reading it. I didn’t stay up all night for the sake of reading a short story on how we need some of what SOPA had in our laws that we clearly do not have a need for, that is made an artificial need because these people don’t understand that the best way to mitigate piracy to distribute at a fair price that a large as possible amount of people can afford, and can access easily without other companies finding ways to screw it up.

It will never eliminate piracy, but as a couple past articles here on Techdirt have shown (that article by Mike on a certain someone with their show on Sci-Fi comes to mind), it will reduce how many people pirate it. The correlation is very simple for anyone not blinded by big bucks to understand.

The more desired something is, and the harder it is for a wide number of people to access it, the more it will be pirated. On the flip side, the more desired something is, and the easier it is to access, the less it will be pirated.

Companies lose more sales on bad decisions for handling products put out for consumption, but apparently companies believe they can do no wrong or something. Guess I missed that memo since it was never actually a thing.

Theodora Michaels (user link) says:

Re: Re:

What would happen if the entire internet were to take the ABA at its word, and fire off a request for written permission to click that link?

I emailed them with a polite request to read the article online and on my Kindle, and they replied politely and quickly with permission. But I am also curious what would happen if they got requests from “the entire internet.”

Anonymous Coward says:

“The one real concession the paper seems to make is that the DNS blocking provisions of SOPA and PIPA were probably a bad idea.”

Which Hollywood will completely ignore being as they are doing everything possible to get ISP’s in other countries to block sites and then applaud the actions of the courts when sites do get blocked.

Anonymous Coward says:

One possible positive outcome for the big internet companies like Google and Facebook if this or something like it passes is to offer the content companies a choice: indemnify us from this law you’ve passed or 100% of your content (legal or not) disappears from search, streaming, YouTube, social media, cloud storage, you name it.

It’s hard to make a song popular when any reference to it gets deleted from Facebook and Google searches turn up nothing for it or the artist who wrote it. Serve up a nice notice about “Due to potential copyright risks, the content creator has declined to participate in the internet” or equivalent. Self-correcting problem.

Anonymous Coward says:

Re: Re:

Unfortunately a company like Google who spends a massive amount of time trying to deflect ignorant political bias that Google = Internet isn’t in a position to play the bad cop. It’s only going to give the ignorant politicians more fuel for the fire and justification for their past actions.

Anonymous Coward says:

It goes on to bring back the “private right of action” part of SOPA, which was so problematic and so egregious that even Lamar Smith dropped it midway through the process in the original SOPA fight, in an effort that he hoped would allow the rest of the bill to go through.

If I recall correctly, what Smith killed was the portion where a website could be “disappeared”. That was the crux of the whole “break the internet” hue and cry.

Private right of action always remained allowing aggrieved parties to act. Otherwise, copyright opponents claim that copyright holders want someone else to police their rights. Truth is opponents didn’t want the government or rights holders enforcing their copyright.

Anonymous Coward says:

The American Bar Association’s intellectual privilege section sounds like “Team America, World Police”.

Nothing will ever change in intellectual privilege maximalist’s way of thinking. They’re blinded by greed and drunk on power and control.

I just hope humanity eventual outgrows this primitive way of thinking.

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