By Zachary Wadlé

On Oct. 26, 2011, the Stop Online Piracy Act “SOPA” (H.R. 3261) was introduced in the United States House of Representatives. One of SOPA’s primary goals is to address the continuing problem of online digital piracy of counterfeit movie, music, and other copyrightable works engaged in through foreign websites. 

The 1998 Digital Millennium Copyright Act (DMCA) and the Copyright Act of 1976 are the primary existing U.S. laws that address copyright infringement, but both have limited ability to address foreign based websites that engage in digital piracy. SOPA attacks this problem by giving both government officials and copyright owners new powers to target foreign websites and infringers through the search engines, web hosts, and payment system providers that allow foreign websites to reach the U.S. market. 


For example, SOPA would give copyright owners new powers to issue “take-down notices” to payment system providers and internet advertising services that support foreign websites posting infringing content. In effect, these “take down notice” would prohibit these websites from linking to, advertising, and/or processing payments related to the foreign websites. The DMCA already provides copyright owners the ability to send a take-down notice to a domestic internet service provider that is hosting infringing content.  SOPA would expand that capability to cover the intermediary payment and/or advertising services that support both domestic and non-domestic websites. SOPA would also give the U.S. Justice Department power to seek court orders requiring U.S. search engines and Internet sites to block access to foreign websites posting pirated material.

While there is broad agreement that SOPA’s mission of stopping foreign website piracy of copyrighted material is a worthy one, the bills’ methods to accomplish that goal are highly contested by the interested parties. Detractors of SOPA include Internet heavyweights such as Google, Yahoo, EBay and Facebook, which say the proposed legislation threatens free speech, imposes an undue burden on their businesses, and will jeopardize the technological stability of the World Wide Web. Supporters include longstanding entertainment companies such as Warner Bros., 20th Century Fox, and Sony Music Entertainment which accuse the Internet companies of acting as facilitators to copyright infringement by collecting revenue from the foreign websites trafficking in pirated material.

The provision of SOPA which requires third-party sites such as search engines to redirect links or block foreign websites is particularly troublesome to Internet companies and online content providers.   The provision would require vigilant monitoring by Internet sites and potentially holds them liable for content regardless of who posts it.  This has serious implications for websites that run on user-generated content such as YouTube and Facebook, requiring them to monitor the huge amount of content uploaded by their third-party users. Opponents of SOPA argue that forcing Internet companies to pre-screen and monitor all of the content posted on their websites poses an enormous and unfair burden to their operations. They also suggest that if such requirements existed five or ten years ago, it’s unlikely that popular websites such as YouTube would exist today, and SOPA will stifle web innovation in the future. SOPA’s supporters have pushed back saying that stronger protection of online intellectual property rights is necessary despite these concerns, and will ultimately generate more revenue currently lost to piracy that will in turn help the American economy.

At this point it is difficult to say which side will win out. SOPA is in the early stages of the legislative process, and is currently being heard by the House Judiciary Subcommittee on Intellectual Property, Competition and the Internet. The mere introduction of SOPA, however, has spawned a fierce public relations and lobbying battle between Silicon Valley and Hollywood that will play out in the media and in the halls of Congress in the months to come, and will ultimately shape the direction of copyright law in the Internet age.