SOPA and Section 1201: A Frightening Combination
SOPA and Section 1201: A Frightening Combination
SOPA and Section 1201: A Frightening Combination

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    One of the many serious problems with the Stop Online Piracy
    Act (“SOPA”)
     (pdf) is how it tacks itself onto existing law to expand liability to people
    who may be three times removed from any actual copyright infringement. In § 103,
    SOPA wraps another layer of liability around what are called the “anticircumvention
    provisions” of the Copyright Act (which are found in section 1201 of the
    Copyright Act).
    The goal of the anticircumvention provisions is preventing people from
    circumventing technology that protects copyrighted works. Importantly, however,
    some courts have held that § 1201 prohibits circumvention even when the
    person’s ultimate use of the work does not infringe copyright. So if you
    circumvent technology to access a work in a way that’s completely legal, you might still be violating § 1201. If SOPA is
    passed, even more individuals and entities will get caught up in an
    ever-expanding net of liability, which is especially ridiculous when we’re
    talking about a provision of the law that may not even require actual copyright

    SOPA’s Ever-Expanding
    Net of Liability

    First, a recap of the offenses that § 1201 created.
    Unsurprisingly, § 1201 prohibits circumventing a technological measure that
    controls access to a copyrighted work. But § 1201 also prohibits manufacturing,
    offering, providing, or trafficking in a technology, product, or service that
    is primarily made or marketed to circumvent, or has limited commercial purposes
    other than circumvention. So, for example, a blog post
    that tells people how to break the DRM on their DVDs to watch them on a new
    device, or a device that’s used in another device to circumvent technological
    protections could violate § 1201. 

    Now, enter SOPA. § 103 of SOPA allows private parties to
    require payment processors and advertising services to cut ties with websites
    that are allegedly “dedicated to the theft of U.S. property.” Note: this is all
    done outside of the court system, so no judge actually reviews any of these
    claims before they’re enforced by the payment and ad networks. As we’ve pointed
    out before,
    the definition of sites “dedicated to the theft of U.S. property” is
    extraordinarily broad, even if we’re only talking about the parts that hook
    onto § 1201. These include:

    1. a website that’s primarily designed
      or marketed to offer goods or services that enable, facilitate, or commit a
      violation of § 1201; 
    2. a website that has limited purpose other than
      enabling, facilitating, or committing a violation of § 1201; 
    3. a website
      operator who takes “deliberate actions to avoid confirming a high probability”
      that the site is used to violate § 1201 (what this might mean is a whole
      ‘nother blog post); or 
    4. a website operator who tries to promote using the
      website to violate § 1201.

    None of these
    definitions require that the website has actually been used to violate § 1201.
    And remember, some of the § 1201 violations don’t even require actual
    circumvention, and a circumvention violation may not require copyright infringement.
    So a person could be subject to having all of their payments and advertising cut
    off (without court oversight) by a private party even if he merely operates a
    website that might be three times
    removed from an unproven act of copyright infringement. Basically, if you might
    be helping someone who might be helping someone who might be circumventing in a
    way that might infringe someone’s copyright, SOPA gives companies the power to
    shut down your business. If Congress passes SOPA, here’s what the scope of
    liability will look like:

    Increased Scope of Liability with SOPA and the DMCA

    Anyone with even a smidgen of common sense should realize
    that this is absolutely ridiculous and gives way too much unsupervised power private

    What’s worse, § 104 of SOPA gives service providers, payment
    processors, advertising services, search engines, domain name registries, and
    domain name registrars complete immunity from suit for cutting off payments and
    ads to a site if they reasonably believe the site is “dedicated to theft of
    U.S. property.” This gives the intermediary the power to inflict all of the
    punishments discussed above even if no rights holder has filed a notice.

    SOPA Hurts People
    Applying for Anticircumvention Exemptions

    As if that weren’t enough, SOPA also makes it much more
    difficult for people to obtain exemptions from § 1201. § 1201 gives the
    Librarian of Congress rulemaking authority to grant exemptions from liability
    for particular classes of works. For example, one current exemption allows
    individuals with visual disabilities to break the DRM on a book to make the
    computer read the book aloud to them. To obtain an exemption, a person or
    entity must propose the exemption to the Librarian. This involves showing the
    Librarian that the anticircumvention provision hinders a legitimate use of the
    work, and showing how the proposed exemption would solve the problem. The thing
    is, it’s very difficult to show how an exemption for a particular technology
    will solve a problem if the technology has never been developed.

    Under SOPA, private parties could attack technology
    developers (or even those who help technology developers) without so much as a
    preliminary hearing before a court. How then could groups like individuals with
    disabilities apply for exemptions if they’re bankrupted for even trying to
    figure out how an exemption could help them? The § 1201 exemption process was
    created to stop the rest of § 1201 from preventing socially valuable technology
    from helping people. SOPA walks all over this balance for the sake of companies
    who think that someone, somewhere, might be infringing.

    And if you’re inclined to dismiss these concerns because no
    one would ever be callous enough to try to prevent access for the blind through
    § 1201, just remember that they already have. In United States v. ElcomSoft and
    Sklyarov, a company and its employee got hit with five criminal circumvention-related
    charges for developing a software that allowed the blind to read otherwise
    inaccessible, legally-purchased ebooks. More recently, Amazon has run into
    trouble with publishers who refuse to allow the Kindle to read books aloud.

    SOPA and the Qualifying

    SOPA is also extremely broad when you think of who has the right to sue for § 1201
    violations. § 1203 of the Copyright Act allows “[a]ny person injured by a
    violation of section 1201” to sue. This is an ambiguous and potentially very
    broad standard, perhaps only limited by the Constitution’s requirement that
    federal courts only decide actual cases or controversies (so the plaintiff must
    have a real, sufficiently direct injury). Under § 1203, a person need not be
    the actual copyright owner to sue someone who allegedly violated part of §

    Now, combine this with SOPA’s definition of a “qualifying
    plaintiff,” found in § 103: the “holder of an intellectual property right
    harmed by the activities described in paragraph (1) occurring on that Internet
    site or a portion thereof.” This only requires that the IP right at issue be
    “harmed,” not infringed—and it might only require that the IP holder is harmed.
    Content companies have a storied history of declaring that perfectly legal uses
    under the limitations and exceptions of the Copyright Act harm their interests:
    uses like re-selling used books or time-shifting TV shows. This definition would
    seem to say that even harms caused by legal conduct are enough to allow the IP
    owner to shut down someone else’s bank account. 

    Each of these definitions are worrisome on their own, but if
    we add SOPA’s plaintiffs on top of § 1203’s plaintiffs, it’s hard to imagine
    who wouldn’t have the power to shut
    down someone else’s business (without any sort of court approval or
    supervision). If all of this isn’t frightening enough, just remember that this
    post has only gone into the interaction between SOPA and just one section of
    the Copyright Act. Stay tuned for more analysis of how SOPA seriously screws
    with the internet and uses copyright as a tool to boost censorship and stop