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Sopa and Pipa: they’ll be back | Bill McGeveran

The movie and music industries won’t drop it. So we need to find legally smart ways of protecting copyright and internet freedom

At the end of a Hollywood blockbuster, when the vanquished villain declares that he should have won and that we haven’t seen the last of him, we all know what it means: the sequel is coming.

So, Hollywood’s top lobbyist, former Senator Chris Dodd, followed a familiar script last week after sweeping online protests derailed the Stop Online Piracy Act (Sopa) and Protect IP Act (Pipa), a pair of legislative proposals backed by movie and music distributors. Dodd snarled that his opponents had misled the public and vowed to continue pressing for new laws to combat unauthorized copying of intellectual property. Coming soon to a congressional hearing room near you, it’s Sopa II: Revenge of the Content Industries.

While the US Senate and House of Representatives deferred immediate action on the bills, few doubt that Congress will debate some form of legislation aimed at overseas web sites engaged in intellectual property (IP) infringement, probably later this year. Even Dodd’s enemies acknowledge that these sites pose a problem, though many question industry estimates about its scope.

Those of us who opposed the excesses of Sopa and Pipa need to prepare for the next round. Sponsors have already abandoned the bills’ most objectionable feature, which interfered with the domain name addressing system in an attempt to cut off access to “pirate” sites – a measure critics charged would “break the internet”. At a minimum, Congress must address three other problems as well.

First and foremost, Sopa II needs to take due process seriously. My students spend their first week of law school learning that subjects of a legal action are entitled to notice of the claims against them and an opportunity to be heard. The law’s departures from these principles are rare, brief and strictly regulated. Limitations on speech require even greater care; a near prohibition on “prior restraints” against publication has become a cornerstone of first amendment doctrine.

Sopa and Pipa blithely discarded these fundamental doctrines. They would allow a court to penalize supposedly “pirate” web sites without giving affected parties any advance notice, much less an opportunity to present their side of the story. We have already seen how inadequate procedures in existing law allow sweeping and erroneous enforcement actions in the name of protecting intellectual property.

Under one alternative bill, the Online Protection & Enforcement of Digital Trade Act (or Open Act), the International Trade Commission (ITC) would hold adversarial proceedings before designating a “rogue” site and issuing orders that would cut off its access to US-based advertisement and payment processing. Whether it’s the ITC, a court or another institution, somebody needs to consider all arguments carefully rather than rushing to judgment.

Second, the standards for judging infringement must be clear and must be consistent with existing intellectual property law. Just compare the muddy language describing the prohibitions in Sopa with the Open Act’s requirement that a site’s activities are “primarily” and “willfully” infringing intellectual property. Moreover, Sopa II needs to incorporate existing defenses to infringement accusations, such as copyright fair use and trademark doctrines permitting resale of legitimate branded merchandise.

Finally, these bills cannot shift IP owners’ duty to safeguard their own rights onto innocent bystanders like Google, eBay or Facebook. Open online forums enable millions of daily communications from ordinary people. Intermediaries cannot examine every post searching for links to pirates. That’s why federal law exempts them from liability for nearly everything their users post independently – even fraud or defamation. IP already gets special treatment, because intermediaries must remove infringing material if rightsholders complain.

Sopa and Pipa went further, requiring intermediaries to scrutinize all user-generated content lest it even link to a “rogue” site. That’s like telling the farmboy he doesn’t need to find all the needles in the haystack, only the silver ones. The burden to identify problems must remain on the owners who benefit from their IP rights, not on intermediaries uninvolved in the infringement.

With these principles in mind, the sequel to Sopa could have an even happier ending, with the internet rescued and the pirates defeated. But I’m betting on some more plot twists. © 2012 Guardian News and Media Limited or its affiliated companies. All rights reserved. | Use of this content is subject to our Terms & Conditions | More Feeds