Stop Online Piracy Act and its effects on digital content

Stop Online Piracy Act

In the recent past, the internet has continued to gain popularity across the globe with thousands of people now accessing the same from even the remotest of areas. With the unprecedented growth of the internet, businesses from all over the world are now able to market and sell their goods and services to a global clientele. Further, communication between people from all over the world has become easier. Today, unlike a few years ago, people can easily share stories, files, movies and even play games online. However, the growth of the internet has triggered a sharp raise in piracy with some websites raking in millions of dollars annually from dealership in counterfeit goods. It is this trend that has lead to the introduction of Stop Online Piracy Act (SOPA). However, the bill as it is currently formulated is largely ineffective when it comes to stopping the theft of intellectual property.

Stop Online Piracy Act (SOPA): A Brief Background

SOPA according to Pepitone is essentially "a proposed bill that aims to crack down on copyright infringement by restricting access to sites that host or facilitate the trading of pirated content" (n.p.). Some of the key provisions of the bill include but are not limited to issuance of court orders barring entities i.e. advertisers and payment merchants like PayPal from engaging in commercial activities with websites either dealing in goods believed to be counterfeit or infringing on copyrights. Further, with the provisions contained in the bill, copyright holders and other aggrieved parties can effectively seek court orders making it illegal for internet service providers as well as search engines to facilitate access to sites believed to be in contravention of copyright laws.

In the recent past, the internet has been abuzz with discussions, arguments and counterarguments against both PIPA (yet another anti-piracy bill) and SOFA and the impact these two bills could have on innovation, free internet and free speech. Stakeholders in the industry have used a number of tactics to voice out their opposition to the bill. These tactics include but are not limited to coordinated boycotts of firms and organizations seen to be supporting the bill, petition drives as well as the January 18, 2012 blackout of several websites including Wikipedia (the English version). To some, SOFA is critical when it comes to the protection of the intellectual property marketplace while to others; the legislation is an avenue towards a senseless censorship of the web. It is a well-known fact that as an open information source, the internet has been vulnerable to abuse over the years and indeed, there are those who have used it to their benefit i.e. businesses dealing in counterfeit goods and websites promoting piracy. However, as it is currently designed, SOPA will not help eliminate copyright infringement. Below, I discuss why the proposed piece of legislation will have a hard time fulfilling its mandate.

SOPA: Why it is Ineffective in Stopping the Theft of Intellectual Property

To begin with, it is important to note that most of the provisions that seek to make the bill practical and executable can be circumvented easily. With the rapid advancement of technology and the internet, it could be possible for those violating copyright laws to continue exploiting a wide range of loopholes and vulnerabilities so as to circumvent steps taken to stamp them out of business. For instance, when it comes to blocking the domain names of websites found to be flouting copyright laws, enforcers could experience challenges as this could prove easy to get around. For starters, blocking a domain name would not necessarily make a website inaccessible as some could still access such a site through its IP address. For instance, were the domain name of a hypothetical website XYZ.com that deals in pirated products to be blocked, those having the site's IP address would still access the site through their Web browser by simply entering the said IP address. Yet another example of how the purpose of SOPA could be defeated has got to do with the bill's provision relating to search engines. In this case, even if search engines in the U.S. are successful in blocking foreign website links; that will do little to keep Web users from reaching out to other search engines. Though there are efforts to amend the bill so that it captures the IP addresses as well, the above examples serve as indicators that those infringing on copyrights may have the technical capabilities as well as knowhow to defeat the purpose of the bill. Hence it is more likely that as soon as one loophole is sealed, dozens of other avenues will be exploited to render SOPA useless and impractical in combating copyright infringement.

Secondly, for any law to be effective there is need for it to have a large support base. In a statement it released in the height of the debate regarding the bill, the White House pointed out that "any effective legislation should reflect a wide range of stakeholders, including everyone from content creators to the engineers that build and maintain the infrastructure of the Internet" (CycleID Reporter, n.p.). With that in mind, it is clear that without support, most particularly from stakeholders (some of whom are expected to help in enforcement efforts), SOPA is at its best ineffective. To highlight this assertion, it is important to note that from the onset, SOPA has continued to face growing criticism from both the stakeholders in the internet marketplace and ordinary citizens. Even those who initially supported the bill in the beginning appear to be developing cold feet. Just as an indicator of the popular opposition the bill faces, Google's spokeswoman at the time opposition to the bill was gaining momentum announced that those who had appended their names to the firm's anti-SOPA petition numbered approximately 4.5 million. Stakeholders who have openly voiced out their discontent with some contents in the bill include but are not in any way limited to Google, Wikipedia and Reditt (Pepitone, n.p). They all contend that though the need to discourage copyright infringement cannot be overstated, the SOPA bill as it is presently constituted will end up doing more harm than good. Some Representatives are also uncomfortable with the bill owing to its unpopularity amongst their constituents. Further, as I had already noted earlier on, it is also important to note that some opposition to the bill has also come from the White House which seems to be concerned about the growing opposition to the bill. It should be noted that unless a majority of stakeholders agree to adhere by SOPA provisions, the law even if passed will be largely ineffective.

Next, it can also be noted that presently, SOPA has a number of gapping inconsistencies as well as vague provisions which could cripple its very application hence effectively rendering it ineffective. Thus even if it sees the light of day, the bill could still be subject to legal disputes regarding both its application and interpretation. For instance, "enable" and "facilitate" are some of the words used by SOPA in an attempt to define infringing websites." With the use of such wordings, it is possible for sites to fall under the laid down definition in the statute but fail to satisfy secondary liability requirements as provided for under the existing laws. This in my opinion is a sure recipe for legal uncertainty and hence decisions reached upon by the courts could be subject to perpetual requests for interpretation and lengthy appeals. The vague wording in this case could also be exploited to take entire websites down on an issue of technicality. Presently, if an individual for instance uploads a song or video that happens to be copyrighted on YouTube, the holder of the copyright can at any time request the website to remove such material from their listings. This is widely referred to as a DMCA takedown which according to Yankelevits "requires that a service provider remove any infringing content upon learning of its existence…." (215). Thus currently, if the website in this case does indeed remove the infringing material once such a request is lodged, it cannot in any way be held liable. However, when it comes to SOPA, the removal of a single infringing material is not enough. The bill's letter in this case could be used to completely shut down a website until such a time when all uploaded materials deemed infringing are totally removed from the website. Effectively, this would have the effect of frustrating the very operations of thousands of legate websites allowing users to exchange, share or compare videos, music, files and other materials.

Fourth, the effectiveness of SOPA could be clouded by the unavailability or funds to make it work or function. Given what the bill wishes to accomplish, it can be noted that the enforcement of the same could end up being a resource intensive undertaking. Costs in this case could relate to monitoring efforts, overseeing enforcement and facilitating international cooperation. Further, in my opinion, the benefits reaped from the bill should it become law do not in any way justify the enormous resources that could be used up to make SOPA work. Thus the workings of the bill should it become law could also be frustrated by numerous demonstrations carried out by Americans unhappy with the utilization of their tax dollars. Also, given other more important priorities, I doubt whether the government would be willing to expend enormous resources to make such a law fully functional. Hence in my opinion, resource constraints may end up frustrating SOPA's resolve to address online piracy and intellectual property theft.

It can also be noted that SOPA could end up being an exercise in futility given the internet's numerous data sharing avenues. Today, unlike 10 years ago, advancements in technology have made it possible for individuals to share and exchange data over a wide range of platforms including but not in any way limited to E-mail, instant messaging etc. Using these channels, users from all over the world can easily exchange data (including copyrighted material) undetected. In my opinion, it would be hard for the government to effectively supervise all the avenues of the internet to enhance compliance with SOPA provisions. Further, closely related to this, it is also important to note that trying to reign in on websites infringing on copyright laws could have the effect of shifting such activities underground far away from the enforcer's radar. For instance, such an action would occasion the establishment of numerous BitTorrent communities and forums that are both invite only and private. With this, the very purpose of SOPA would be defeated hence rendering the bill ineffective.

Counter Arguments

Even though the points I highlight above allude to the ineffectiveness of SOPA as far as addressing online piracy and intellectual property theft is concerned, it would be prudent to take into consideration some of the arguments put fourth by proponents of SOPA and why the said arguments are largely invalid. To begin with, proponents of this piece of legislation are concerned that with the current legal framework in place; entrepreneurs, authors as well as inventors in America could continue losing out to infringers both in and outside the country. Those supporting SOPA are of the opinion that the U.S. laws in place currently are ineffective when it comes to dealing with infringers and hence there exists a need to revamp existing laws so as to ensure that American producers as well as creators of products and services, research pieces as well as new writings are encouraged through economic incentives. One of the avenues utilized by copyright holders currently to counter copyright infringement is the DMCA warning. However, as Stegmaier notes, "in sum, the DMCA is broken, and it needs to be fixed" (70). As I have already pointed out elsewhere in this text, DMCA protects websites against any liability provided that such websites take the necessary action upon receipt of what is referred to as a takedown notice. In fact, as per the provisions of DMCA, an infringement concern need not go to court unless there is a disagreement of sorts i.e. between an individual or organization alleging copyright infringement and the up-loader of the infringing material who is also allowed to file a counter-motion if he or she is convinced that no copyright has been infringed. Why in my opinion SOPA cannot be considered a more powerful extension of DMCA is because it tries to solve the problem of piracy using weaker approaches. I remain convinced that the vague wording of the bill as well as the lack of consensus amongst key stakeholders could frustrate the effectiveness of SOPA thus making it more ineffective than the legal provisions already in place.