By Dan McPheeters and Michael Stein
Now that the immediate reactions and analyses have died down, we thought we could dedicate the inaugural series of the revamped Stein McEwen “blawg” to taking stock of the SOPA debate and explore what the future may look like for online regulation viz. piracy.
The opposition to the Stop Online Piracy Act (“SOPA”), culminating in the internet blackout last Wednesday, coalesced around the idea that the bill would kill the internet as we know it (see, e.g., David Post’s series at the Volokh Conspiracy). Supporters, on the other hand, asserted that the bill “only target(ed) foreign websites that are primarily dedicated to illegal activity.” As is often the case in politics and PR, both statements are true.
While SOPA was primarily aimed at foreign websites directed to US users, the enforcement provision allowed the Government to obtain an injunction against websites such as Google and Huffington Post in order to force their compliance with the Government’s quest to purge the internet of the offending material. Here is where things became ugly – because the targets of SOPA are foreign persons/companies, it is difficult to serve them with process or otherwise obtain jurisdiction over them. Any attempt by the Dept. of Justice to file a suit is likely going to be ex parte, yet that is fully contemplated by the statute; the AG is specifically authorized to “commence an in rem action against a foreign infringing site or the foreign domain name used by such site” in the event the person behind the alleged infringement cannot be found after a “good faith effort.” (SOPA §102(b)(2)).
What this means is that the foreign site can be adjudicated guilty of copyright infringement without even knowing they have been charged in the first place, let alone afforded the opportunity to defend themselves, such as by asserting fair use or even ownership. Returning to the enforcement provision, the Government then has the power to force websites such as Google to purge their vast systems of anything originating from the allegedly infringing site, or anything that would result in a user being directed to such a site, as well as terminating all financial transactions with the entity behind the site. Put another way – the entire site is now persona non grata on the internet within the US, wholly incapable of doing business, and likely without having had a chance to defend itself. The potential impact is broad indeed.
In subsequent posts, we intend to explore the odd dynamics of this fight, whether or not Viacom v. Youtube is continuing to cast its shadow over the relationship between content providers and distributors, and how, with relatively minor changes, one of the most polarizing bills in recent memory could become universally supported. Next up: We introduce the competitors.