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from www.forbes.com – The Stop Online Privacy Act (SOPA) and the Protect IP Act (PIPA) have reasonable intents, but are singularly poorly constructed, seemingly drafted because the Digital Millennium Copyright Act was not producing the intended effect. As the Electronic Frontier Foundation put it, these are “massive piece(s) of job-killing Internet regulation.” And even if they are delayed, they’ll be back in some other form.
This will have so many far reaching effects, with incredible burdens heaped onto businesses in general and the tech sector in particular. Besides the technical implementation and process burdens, anyone with a community platform, publishing platform, social network or a white-label social platform – Jive, say – would need to have legal and business process structures in place to manage compliance. If you’re a start up, especially a social one with user-generated content, you’d need to have that in place from the start, and know that the AG can shut you down at a moment’s notice and, in effect, remove you from the Internet – search engines, DNS, etc. – based on an allegation, where the burden of innocence is on you.
The wording of both regulations is incredibly vague, unclear and legally up for interpretation. Any site “facilitating” the commission of copyright theft [PIPA has the vaguely safer “primarily engaged in facilitating”] can be taken action against. “Facilitating” is left undefined. As opposed to DMCA, where the focus is on violating content, SOPA and PIPA focus on links to violating sites. If so ordered, any links to an offending domain need to be scrubbed off every U.S. site. Private action seems to be supported – where the plaintiff can directly require search engines to drop links to a site.
Consider the implications. If someone posted a video of their TV screen showing NBC content to Yahoo.co.uk, an Attorney General could order Reddit, for example, to remove every link to Yahoo.co.uk from everywhere on Reddit. Reddit would also need to implement monitoring to make sure no links to Yahoo show up again. Bing would need to drop Yahoo links from results, which would probably be strange, since Yahoo provides the search results. If YouTube was in violation, would embedded clips in pages and search results exist? Finally, it’s completely unclear whether Skype, or other P2P systems like Tor, are covered or not. Search engines (and, probably URL shorteners and anyone with a search box) are required to drop your links from their results, ad networks stop serving you (or your ads), and your payment provider stops working with you. It’s unclear how you get back online, as well. Lots for the lawyers. Would the legal risks now outweigh doing anything at all social online?
SOPA and PIPA also have a naïve view of current common practice. SOPA divides the world of the Interwebs into two: foreign and domestic. Domestic sites have domains registered in the U.S., and “foreign” sites are elsewhere. Note that some foreign sites [e.g., thePirateBay.com] are registered using a “domestic”-looking domain [ie: .com], but are hosted in foreign locations. Which rules apply? It does not consider simple cases like “reddit.co.uk”, which mirrors “reddit.com”. One is considered foreign, the other domestic – although they serve the exact same content. It also doesn’t consider content delivery networks like Akamai – where it’s unclear where exactly you are connecting from. So if you have a global URL strategy, it’s going to be unclear which rules apply when. Some [like Public Knowledge] say that if U.S. users can access your overseas website, it gives the U.S. jurisdiction over it.
Last, these regulations are a serious weakening of the DCMA safe harbor provisions. Before, you were not directly responsible for user-generated content. Now you are, and you need to actively monitor what’s going on – if your legal department even wants to take on that risk. If you have international sites, you need to be particularly wary, since the U.S. laws now govern your sites availability. Finally, your content management system and social vendors [not to mention Internet providers, CDNs, and networking vendors] need to have software, policy and process in place to comply with the provisions. So for brands running a community site, say – or outsourcing to Jive – need to actively monitor every post or action to make sure – which is impossible, actually – that it doesn’t violate someone’s copyright.
As always, the Internet will route around such damage. I could simply use a foreign DNS server to circumvent domestic DNS blacklisting. Or, some people have already started collecting the IP address of common sites, so you wouldn’t go through DNS at all. People who really want to pirate content will find a way, and the rest of us have to live with poorly crafted laws that failed to stop it.