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Using a Sledgehammer When a Scalpel Is Needed to Protect Copyright Holders

I am an American intellectual property attorney who has both traditional content and Internet-based clients. I represent both plaintiffs and defendants - about 50% each. I’ve represented movie companies, music producers, musicians, authors, photographers and other content providers, as well a wide variety of web-based companies.

As such, I have experienced first-hand the importance of balancing copyright protection, Internet innovation and respect for constitutional principles.

The Senate’s proposed stop online privacy act (SOPA) and the House version, Protect Intellectual Property Act (PIPA), aim to curb online copyright piracy ... but end up using a sledgehammer, when a fine scalpel is instead needed.

Harvard Law School professor Laurence Tribe - one of the top constitutional experts in the country - wrote a letter to Congress last month stating that SOPA is unconstitutional.

As the Hill noted:

Laurence Tribe, a constitutional law expert at Harvard Law School, argues [SOPA] violates the First Amendment in a memo sent to members of Congress on Thursday.

The bill would empower the Justice Department and copyright holders to demand that search engines, Internet providers and payment processors cut ties with websites “dedicated” to copyright infringement.

Tribe argues the bill amounts to illegal “prior restraint” because it would suppress speech without a judicial hearing.

Additionally, the law’s definition of a rogue website is unconstitutionally vague, Tribe writes.

“Conceivably, an entire website containing tens of thousands of pages could be targeted if only a single page were accused of infringement,” Tribe writes. “Such an approach would create severe practical problems for sites with substantial user-generated content, such as Facebook, Twitter, and YouTube, and for blogs that allow users to post videos, photos, and other materials.”

Indeed, the Weekly Standard argues that SOPA is modeled after Chinese laws allowing the government to crack down on the Internet in that country. Certainly, America should not emulate China on issues of copyright or free speech.

No wonder conservatives and liberals are joining forces to fight the bills. And see this.

Additionally, venture capitalists and the captains of the tech and Internet sectors say that SOPA and PIPA would gravely hurt the economy at a time when recovery is still fragile. For example, Digital Trends points out:

The list of SOPA opponents also includes 425 venture capitalists and entrepreneurs — i.e. job creators.

Indeed, many business leaders say that these bills would be a blow to jobs and the economy. Given that tech is one of the only vibrant sectors of the economy right now, we should listen to them.

Finally, the engineers who actually created the Internet and security experts say that SOPA will undermine the stability of the Internet. As Digital Trends reports:

83 Internet pioneers — we’re talking people like Vint Cerf, co-designer of TCP/IP; Jim Gettys, editor of the HTTP/1.1 protocol standards; Leonard Kleinrock, a key developer of the ARPANET; in other words, the very people who built the Internet — who say that SOPA (and … PIPA), “will risk fragmenting the Internet’s global domain name system (DNS) and have other capricious technical consequences” because of the bills’ requirement that Internet service providers block domain names of infringing sites.

In their letter to Congress, this group of Internet founders also argues that SOPA “will create an environment of tremendous fear and uncertainty for technological innovation, and seriously harm the credibility of the United States in its role as a steward of key Internet infrastructure.”

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Former Department of Homeland Security Assistant Secretary Stewart Baker … agrees with the Internet founders when he says that SOPA will “do great damage to Internet security, mainly by putting obstacles in the way of DNSSEC, a protocol designed to limit certain kinds of Internet crime,” among other repercussions.

Sandia National Laboratories and others agree.

Don’t Throw the Baby Out With the Bathwater

While SOPA and PIPA are the wrong tools for the job, that doesn’t mean that we should abandon copyright altogether.

Some argue that copyright is a burden on our society which stifles innovation. They argue that the concept of “open source” should be taken to the extreme … and all copyright laws abandoned.

But copyright is one of the foundations upon which our nation was built. Copyright protection is enshrined in our founding documents. Article I, Section 8, Clause 8 of the United States Constitution - known as the “Copyright Clause” - empowers the United States Congress:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Indeed, most people wouldn’t be motivated to put their time or money into creating useful or pleasing works if they didn’t think there could be a payoff at the end of the day. Copyright protection helps entrepreneurs – whether software programmers, musicians, artists, authors or photographers – to protect their hard work and investment.

In a free market economy, “the pursuit of happiness” requires that our property be protected against theft. In the physical realm, that means things like laws protecting against foreclosure on our houses without justification. Intellectual property laws, such as copyright, protect our creative efforts, and motivate us to work harder to write that killer app, great song, or great American novel.

So What Should We Do?

SOPA and PIPA are overbroad and dangerous to our civil liberties and our economy. But there are websites which make money off of pirated versions of movies, music and other creative works and don’t provide any value added of any nature whatsoever.

So what should we do?

Jay McDaniel – one of the lead attorneys fighting torrent–based copyright infringement - argues:

There is a simple solution to the dilemma of digital piracy, however, one that will cost the government nothing, that will protect free speech and that will ultimately bring an end to a practice that is undermining the viability of our cultural industries. More importantly, it will enable Congress to avoid polluting legitimate free speech issues with behavior that is neither protected by the Constitution nor lawful.

Simply let copyright holders exercise the right to efficiently discover the identity of infringers. Copyright law as it presently exists with its substantial civil remedies will take care of the rest of the problem.

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The answer is simple. Congress should overrule two decisions that held that copyright owners could not use the Digital Millenium Copyright Act (DMCA) to subpoena the identities of infringers directly from cable internet service providers. These two decisions, Recording Indus. Ass’n of America v. Verizon Internet Servs., Inc., 351 F.3d 1299 (D.C. Cir. 2003) and In re Charter Communications, Inc., 393 F.3d 771 (8th Cir. 2005), have made it extremely difficult for copyright owners to find and prosecute civil claims against the wide-spread piracy that occurs on peer-to-peer networks.

Both cases involved attempts by copyright owners to use a provision in the DMCA that allows the owners to issue takedown notices to Internet Service Providers (ISPs) and to also obtain a subpoena to learn the identity of the infringer. The Verizon and Charter Communications courts held that the takedown notice-subpoena provisions did not apply to claims seeking to discover the identity of Internet account holders.

It was a strained reading of the statute to begin with, and it has led to a morass of litigation and discovery disputes in which there are conflicting jurisdictional and venue decisions on a nearly daily basis. More significantly these decisions closed the courthouse doors to any copyright holder that cannot demonstrate widespread copying sufficient to justify bringing a large “John Doe” action just to find out who the culprits are. Moreover, in a relatively small number of cases, hostile district judges are unwilling to let the cases go forward in any reasonably economic manner.

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Copyright holders know that their works are being pirated. They know where they are being pirated and how they are being pirated. But they simply cannot get to the pirates. If Congress were to overrule these decisions, the problem would disappear as the people who break the law would find themselves facing the serious consequences of a civil infringement suit. The infringers would pay for the remedy through statutory fee shifting.

Private enforcement litigation would replace the need for government oversight of our Internet habits, and those who break the law would fund the system. Digital piracy, in its present form, would quickly come to a halt for the same reason that we don’t shoplift copies of DVDs from Walmart. It’s too easy to get caught and the penalties are too severe.

McDaniel’s proposal can be improved, and details fine-tuned to ensure the right balance between copyright protection, encouragement of Internet and tech market innovation and protection of civil liberties such as fair use of portions of copyrighted material for political commentary.

But one thing is certain: we need better legislation than SOPA and PIPA. As constitutional law expert Lawrence Tribe wrote in his letter to Congress:

[SOPA] creates confusion and underscores the need to go back to the drawing board and craft a new measure that works as a scalpel rather than a sledgehammer to address the governmental interests that SOPA purports to advance.

Postscript: As reported by Forbes, the Atlantic Monthly and others, coders are already developing work-arounds to SOPA and PIPA. For example, a developer using the alias “Tamer Rizk” launched DeSopa, an add-on for the popular Firefox browser that would allow users to visit sites blocked by the proposed copyright protection measures proposed under SOPA. So not only these bills are not only draconian, but they won’t work.

D. Alexander Floum, Esq. – a former adjunct law school professor and founding president of the IP section of the Contra Costa County Bar Association - practices intellectual property law at The Williams Firm in Walnut Creek, California.

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