SOPA (the Stop Online Piracy Act
H.R. 3261) is proposed legislation before the U.S. House of Representatives that would require search engines, advertisers, ISPs and other key internet players to police content and take active moves to take down allegedly infringing content. It’s a very broad bill, with many problematic aspects for online marketers.
If SOPA (and/or its counterpart in the Senate, the Protect IP Act – PIPA) are signed into law, the implications for marketers are significant. Here’s a Q&A covering the most important aspects of the bill that all marketers both need to know and should be considering seriously.
What Is SOPA’s Purpose?
SOPA was proposed as a remedy for intellectual property owners to make it easier to make take down requests or halt payments to “rogue” or “foreign” websites accused of infringing copyright (for example, hosting or streaming movies or music) or selling counterfeit goods, such as prescription medications.
Why Should Marketers Be Concerned?
The act would grant broad powers to content owners to demand that ISPs take down allegedly “offending” sites. It would also allow them to demand that search engines remove links to the sites in search results, that advertising networks cease delivering ads for the site owner, and that payment services such as credit card companies or Pay Pal stop handling transactions for a site. Any or all of these actions must be completed within five days of receipt of a complaint.
Although the act is aimed at sites based outside of the U.S., the language in the proposed legislation is both broad and vague, often referencing “U.S.-directed websites. So in theory, sites based in the U.S. could be subject to the same measures as foreign websites. The act also grants broad powers to the U.S. government, causing some critics of the bill to worry about government-mandated censorship.
And inevitably, if enacted in its current form, the legislation will open up wide new avenues for black-hat marketers to wreak havoc on competitors.
Doesn’t The Digital Millennium Copyright Act (DMCA) Protect Website Owners?
The DMCA was signed into law in 1998, and part of its purpose was to protect websites that posted or linked to user-generated content from liability when that content was copyright-protected. In other words, if someone posted a copy of a copyrighted movie or TV show to YouTube, YouTube couldn’t be sued, but the copyright holder could issue a “takedown” request. Same for Google linking to illicitly posted content. In essence, DMCA is a “safe harbor” for search engines and other content providers.
SOPA would make it easier for content owners to circumvent the DMCA and pursue private action against allegedly infringing sites, bypassing existing processes like Google’s request for content removal tool.
What Can Targeted Site Owners Do?
The bill would allow targeted sites 7 days to explain why the requested action (take-down, removal from search results, etc) should not apply. However, as anyone who’s been hit by a search engine penalty knows, getting restored generally takes time. If Google, Bing or other search engines are handling dozens or even hundreds of these requests (as seems likely) the damage done to an innocent site could be severe to fatal.
Won’t The Bad Guys Just Move To Another Domain?
That’s what opponents of the bill contend—that the bill will essentially just create a massive paperwork and legal nightmare that results in a gigantic game of “whack-a-mole” while at the same time giving too much power to resource-rich organizations to hamper competitors. Meanwhile, legitimate sites that are targeted will have to expend time and resources they may not be able to afford.
Who’s Behind SOPA?
The bill was introduced in the House of Representatives on October 26, 2011, by Lamar Smith (R-TX) and was initially co-sponsored by Howard Berman (D-CA), Marsha Blackburn (R-TN), Mary Bono Mack (R-CA), Steve Chabot (R-OH), John Conyers (D-MI), Ted Deutch (D-FL), Elton Gallegly (R-CA), Bob Goodlatte (R-VA), Timothy Griffin (R-AR), Dennis A. Ross (R-FL), Adam Schiff (D-CA) and Lee Terry (R-NE). SOPA has extensive support from Motion Picture Association of America, the Recording Industry Association of America, Macmillan Publishers, Viacom, and various other companies and unions in the cable, movie, and music industries. The U.S. Chamber of Commerce also favors the legislation, as do a number of large trademark-dependent companies, and many state attorneys general.
Who’s Opposed To SOPA?
Representatives from California (where many Internet companies are based) including House Minority Leader Nancy Pelosi and Darrell Issa(R-CA) who proposed eliminating rules on search engines and ISPs from the legislation (this proposal was defeated). Other Representatives that introduced proposed markups diluting the legislation or strengthening the rights of site owners include Jason Chaffetz (R-UT), Hank Johnson (D-GA), Zoe Lofgren (D-CA), Jared Polis (D-CO), Ben Quayle (R-AZ) and Jim Sensenbrenner (R-WI).
The bill also faces extensive opposition from key players in the internet and tech industry, including those most directly targeted by the legislation, including eBay, Facebook, Google, LinkedIn, Mozilla, Twitter and others. The bill is also opposed by many prominent rights watchdog groups, including the ACLU, the Electronic Frontier Foundation, Human Rights Watch and Reporters Without Borders.
Several prominent founders of tech companies, including Google co-founder Sergey Brin, Twitter co-founder Jack Dorsey, Netscape co-founder and current venture capitalist Marc Andreessen, PayPal founder Elon Musk and several others, posted an Open Letter To Washington expressing their concerns about the legislation. From the letter:
These two pieces of legislation threaten to:
Require web services, like the ones we helped found, to monitor what users link to, or upload. This would have a chilling effect on innovation;
Deny website owners the right to due process of law;
Give the U.S. Government the power to censor the web using techniques similar to those used by China, Malaysia and Iran; and
Undermine security online by changing the basic structure of the Internet.
And Vint Cerf, one of the founders of the Internet and a Google vice president, wrote House committee chairman Lamar Smith on December 15 saying “Requiring search engines to delete a domain name begins a worldwide arms race of unprecedented ‘censorship’ of the Web,” in a letter published on CNet. In addition, 83 influential engineers who played crucial roles in the design and development of the internet published an open letter opposing to the bill.
What Are The Odds Of SOPA Becoming Law?
Until the abrupt adjournment of the hearings today, it looked like the Judiciary Committee will recommend that the bill proceed to the full house for a vote. And most observers were predicting that the bill would pass. Now, though, it’s less clear what will happen when the hearings resume, apparently to bring in experts to testify on some of the technical and security issues raised by the proposed legislation.
Nonetheless, due to its sweeping provisions and potentially draconian penalties it imposes, the progress of this legislation should be on all the radar of all marketers, and you should be thinking hard about the implications for your business and clients. You can track the progress of the bill via GovTrack.
How Can I Protest SOPA?
Write your Representative. Protect Innovation lets you sign a petition, and Engine Advocacy lets you either call or write your representative.
Where Can I Find Out More About SOPA?
Gary Price has put together a comprehensive Big List Of SOPA Links. And Wikipedia’s SOPA entry goes into extensive detail about the proposed legislation, with much more about the potential legal, technical and free speech issues.
Postscript: See our follow-up, Why The Web Is Going Dark Over SOPA & PIPA.
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