By Momoko Kanda

If United States’ government has anything to say about it, they certainly will. The media has been abuzz about the recent bills being debated in the United States House and Senate: the Stop Online Piracy Act (SOPA), and the Protect IP Act (PIPA) respectively. These bills intend to allow the U.S. Attorney General to seek a court order against foreign websites in jurisdictions which may be more tolerant of copyright infringement laws and make them disappear. The mechanism by which the websites will disappear is through the Internet service providers who will now be compelled to block any websites which might be suspected of copyright infringements. With the backlash SOPA and PIPA have garnered – Wikipedia, Google and others putting up messages on their sites calling for the public to oppose the bills – one might think that these are novel pieces of legislation to tackle the longstanding issue of online piracy. In fact, there has been plenty of legislation which has come before SOPA and PIPA, most notably the Digital Millennium Copyright Act (DMCA) that tackles copyright infringement issues. So what makes SOPA and PIPA so unpalatable to the Internet heavyweights; and, why have these two bills triggered such passionate opposition?

In order to understand the outrage now, it is necessary to understand the DMCA to figure out how SOPA and PIPA alter the U.S. government’s current position, which has remained fairly constant since the DMCA was passed in 1998. In addition to implementing two 1996 treaties of the World Intellectual Property Organization  (WPO), the DMCA also addresses a number of significant copyright-related issues which are divided under 5 titles. Title II is particularly pertinent as it deals with the “Online Copyright Infringement Liability Limitation Act (OCILLA),” which creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities. This offers online service providers a “safe harbour” while at the same time dealing with copyright infringements. As long as online service providers adhere to the guidelines and swiftly block access to infringed material when it is brought to their attention they will be protected. Additionally OCILLA also offers online service providers protection from liability to their users upon notice from such users who claim that the material in question is not, in fact infringing on any copyrights. The criticisms of the DMCA are that it allows online service providers to escape from liability far too easily. Perhaps, this is why SOPA and PIPA both intend to hold online service providers to a much more onerous standard.

Under SOPA, the U.S. Attorney General can seek a court order against a suspected piratical offshore website. This is then served on American Internet service providers who are then supposed to make the target website virtually disappear. While under the DMCA, copyright owners are required to request that the website to remove the infringing content within a reasonable amount of time, SOPA bypasses this process. Under SOPA, there is no longer a “safe harbour” because the responsibility for detecting and policing the website for copyright infringing material is now placed on the site itself. If any copyright infringing material is found on the site, the U.S Attorney General can have the site shut down. With such severe consequences, websites will no doubt be forced to spend a sizable amount of time and money to adequately police and monitor their sites for infringements. While expense alone is no justification to criticize either SOPA or PIPA, there is also the risk of entire Internet communities being wiped out because of the indiscretions of a few select members. Some may argue that the DMCA is a toothless piece of legislation because most notable cases that have gone to court have not been decided in the copyright owner’s favor.

However, despite its alleged lack of bite, the Justice Department – without the help of either SOPA or PIPA – was able to shutdown the popular file-sharing site Megaupload.com, even though the site is based in Hong Kong. The Justice Department also took actions to force Megaupload and related domain names to go offline, and slapped the firm’s co-founders with copyright infringement suits. The claim is that the site knew about the flagrant copyright violations, but chose to do nothing about it, which prompted action from the U.S. government. While this may seem a fair way of dealing with sites that openly abuse and promote copyright infringing material, in a blink of any eye other innocent users of the site lose their files and forfeit their subscription fees because of the few who abuse the site’s functions. Clearly, the U.S. government already wields a substantial amount of policing powers, and even with current legislation innocent subscribers are already being caught in the cross hairs. It begs the question of whether further powers are necessary to deal with the problem.

The way the DMCA functions is to give websites a chance to take down the copyright infringing material when brought to their attention, after which the copyright owner is free to take legal action if nothing is done. This provides a necessary balance between limiting the liability of American Internet service providers and the copyright owners, because while copyright infringing material can be taken down the companies are not being subjected to onerous duties to actively police and monitor their sites. While it is clear that neither SOPA or PIPA will pass in their current form, this issue will be a hot topic, because it is likely that if stricter copyright infringement laws in the U.S pass and are deemed to be effective, other countries will soon follow suit.