November 18, 2011

SOPA: Could this proposed IP law chill news innovation?

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Controversial new legislation aimed at defending intellectual property rights is making its way through Congress. It’s sparked considerable backlash across the internet.

While protecting copyright is an admirable goal, this particular bill could hurt news organizations and online publishers in several ways…

By Amy Gahran

OpenCongress summarized the Stop Online Piracy Act (HR 3261):

“This bill would establish a system for taking down websites that the Justice Department determines to be dedicated to copyright infringement. The DoJ or the copyright owner would be able to commence a legal action against any site they deem to have ‘only limited purpose or use other than infringement,’ and the DoJ would be allowed to demand that search engines, social networking sites and domain name services block access to the targeted site. It would also make unauthorized web streaming of copyrighted content a felony with a possible penalty up to five years in prison. This bill combines two separate Senate bills—S.968 and S.978—into one big House bill.”

CNN.com summarized the potential impact:

”[The bill’s] intent is to help put a stop to foreign websites that illegally post, and sometimes sell, intellectual property from the United States. Federal law-enforcement agencies would be empowered to shut down those sites, and cut off advertising and online payments to them.”

Supporters of SOPA include the Motion Picture Association of America, the Recording Industry Association of America, Comcast, NBC Universal, Viacom, the Independent Film & Television Alliance, several unions (including the Teamsters), and the U.S. Chamber of Commerce—which estimates that U.S. businesses lose $135 billion per year due to “counterfeiting” by “rogue websites.”

Opponents include the Electronic Frontier Foundation, Google, the Center for Democracy & Technology, the European Parliament, and at least one major U.S. news publisher: Bloomberg.

Several news publishers already take measures to protect and enforce their copyright—from issuing individual cease-and-desist letters or Digital Millennium Copyright Act (DMCA) takedown notices, to AP’s News Registry program—and even employing copyright “trolling” firms such as Righthaven.

But SOPA’s proposed enforcement mechanisms, and its vagueness concerning which specific criteria infringement claims would have to meet in order to trigger enforcement actions, could end up putting many news publishers at risk.

Alexander B. Howard, Washington correspondent for O’Reilly Media, recently offered his analysis about SOPA. In an interview he elaborated upon what U.S. news organizations might have at stake with this proposed legislation.

The key problem, he said, is that SOPA “messes with central principle of intermediary liability online. This means that if your site hosts user generated content, you aren’t legally liable in any significant way for that content. So when somebody posts infringing content, or porn, or anything else objectively illegal to a site, that site is not held liable for it.”

(Stanford Law backgrounder on online intermediary liability.)

Activities that might put a news publisher at risk under SOPA include comments or discussion forums, crowdsourced newsgathering, citizen journalism platforms or projects, photo or video contests, and more.

Howard noted the difference between SOPA and DMCA: “While DMCA was contentious when enacted, it did create a clear mechanism. You had to identify specific infringing content, file a complaint with specific site, and that site had the right to respond and to claim fair use.”

If a copyright holder filed a SOPA complaint against a news site, the U.S. DOJ could take several actions that would reach beyond simply getting the infringing content removed. For instance, the DOJ could shut down the site’s ability to accept payments—the kind of financial “blockade” that recently crippled Wikileaks. They also would be blocked from working with online ad networks.

Bloomberg explained how this would work:

“Under the House bill, payment processors and online ad networks must suspend services to a website if notified of an infringement by a private copyright holder, unless the website provides a “counter notification” explaining its actions. ...After that process, a rights holder may seek an injunction in court against the website that may be applied to payment processors and ad networks requiring them to stop doing business with the site, the summary states.”

SOPA also proposes to penalize infringing sites by blocking access to their websites via a technological tactical called DNS filtering. CNET reports that some internet security experts are concerned this could have the unintended consequence of undermining overall internet security.

“Imagine you’re a small paper,” said Howard. “Someone posts infringing content on your web site or social media presences—and you don’t have resources to monitor those pages or haven’t gone through, all the submissions. How do you deal with that? Ask the Citizen Media Law Project for advice? Or simply choose not to do crowdsourcing or social media because your lawyers say the risk of running afoul of SOPA is too great?

“This is a problem not just for today’s established news outlets, but for the news venues that are coming next. SOPA could have a huge chilling effect on news innovation,” he said.

Howard recommends the Center for Democracy and Technology as a key resource for learning about the potential problems with SOPA—including their two-page Stop SOPA overview.

Statements and letters supporting SOPA can be found on the House Judiciary Committee site.

Congress may vote on this bill before the end of the year.

“To be clear, online piracy is a bad thing,” said Howard. “I’m a writer, and I don’t support piracy. People who spend their education and career learning to create great content should be compensated for that. But specific policy choices are being made here, and they’re supported by entities (such as unions and Congress) which don’t fully understand the implications of that policy because they don’t understand the internet. And that could have dire consequences for freedom of speech, and of the press.”

The News Leadership 3.0 blog is made possible by a grant to USC Annenberg from the John S. and James L. Knight Foundation.

The Knight Digital Media Center at USC is a partnership with the Annenberg School for Communication & Journalism. The Center is funded by a grant from the John S. and James L. Knight Foundation.

By Amy Gahran, 11/18/11 at 3:08 pm