Global Research

SOPA Won’t Work

Many experts have said that the Stop Online Privacy Act (SOPA) and Protect IP Act (PIPA) are not only draconian, but that they fail to address the root problem.

A former intellectual property law school professor points out:

[SOPA and PIPA] aim to curb online copyright piracy … but end up using a sledgehammer, when a fine scalpel is instead needed.

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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.

Jay McDaniel – a plaintiff’s attorney for content providers fighting torrent–based copyright infringement – agrees, and  proposes a better alternative:

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.

Obviously, the law should be crafted so that discovery can only be used against actual copyright pirates, not political commentators or bloggers who – under the fair use and My Lai/Zapruder exceptions to copyright law – use portions of copyrighted material for political or social commentary, or for educational purposes.  In other words, copyright law should never be used to crush dissent.  (We understand that some – like Amir Taaki – promote the destruction of all copyright laws.  We don’t agree with that view.)

Many Copyright Lawyers Oppose SOPA

Indeed, many of the nation’s top copyright lawyers oppose SOPA and PIPA, including:

1. Marvin Ammori, Affiliate Scholar, Center for Internet & Society, Stanford Law School
2. Brook K. Baker, Northeastern University School of Law
3. Stewart Baker, former NSA General Counsel and Head of Cyber Policy for DHS
4. Derek E. Bambauer, Brooklyn Law School
5. Margreth Barrett, Hastings College of Law University of California-San Francisco
6. Mark Bartholomew, University at Buffalo Law School
7. Ann M. Bartow, Pace Law School
8. Marsha Baum, University of New Mexico School of Law
9. Yochai Benkler, Harvard Law School
10. Oren Bracha, University of Texas School of Law
11. Annemarie Bridy, University of Idaho College of Law
12. Chris Bronk, Rice University
13. Dan L. Burk, University of California-Irvine School of Law
14. Irene Calboli, Marquette University School of Law
15. Adam Candeub, Michigan State University College of Law
16. Michael Carrier, Rutgers Law School – Camden
17. Michael W. Carroll, Washington College of Law American University
18. Brian W. Carver, School of Information University of California-Berkeley
19. Anupam Chander, University of California-Davis School of Law
20. Andrew Chin, University of North Carolina School of Law
21. Ralph D. Clifford, University of Massachusetts School of Law
22. Julie E. Cohen, Georgetown University Law Center
23. G. Marcus Cole, Stanford Law School
24. Kevin Collins, Washington University-St. Louis School of Law
25. Danielle M. Conway, University of Hawai’i Richardson School of Law
26. Dennis S. Corgill, St. Thomas University School of Law
27. Christopher A. Cotropia, University of Richmond School of Law
28. Thomas Cotter, University of Minnesota School of Law
29. Julie Cromer Young, Thomas Jefferson School of Law
30. Ben Depoorter, Hastings College of Law University of California – San Francisco
31. Eric B. Easton, University of Baltimore School of Law
32. Anthony Falzone Director, Fair Use Project Stanford Law School
33. Nita Farahany, Vanderbilt Law School
34. Thomas G. Field, Jr., University of New Hampshire School of Law
35. Sean Flynn, Washington College of Law American University
36. Brett M. Frischmann, Cardozo Law School Yeshiva University
37. Jeanne C. Fromer, Fordham Law School
38. William T. Gallagher, Golden Gate University School of Law
39. Laura N. Gasaway, University of North Carolina School of Law
40. Deborah Gerhardt, University of North Carolina School of Law
41. Llew Gibbons, University of Toledo College of Law
42. Eric Goldman, Santa Clara University School of Law
43. Marc Greenberg, Golden Gate University School of Law
44. James Grimmelman, New York Law School
45. Leah Chan Grinvald, St. Louis University School of Law
46. Richard Gruner, John Marshall Law School
47. Robert A. Heverly, Albany Law School Union University
48. Laura A. Heymann, Marshall-Wythe School of Law College of William & Mary
49. Herbert Hovenkamp, University of Iowa College of Law
50. Dan Hunter, New York Law School
51. David R. Johnson, New York Law School
52. Faye E. Jones, Florida State University College of Law
53. Amy Kapczynski, University of California-Berkeley Law School
54. Dennis S. Karjala, Arizona State University College of Law
55. Anne Klinefelter, University of North Carolina College of Law
56. Mary LaFrance, William Boyd Law School University of Nevada – Las Vegas
57. Amy L. Landers, McGeorge Law School University of the Pacific
58. Mark Lemley, Stanford Law School
59. Lawrence Lessig, Harvard Law School
60. David S. Levine, Elon University School of Law
61. Yvette Joy Liebesman, St. Louis University School of Law
62. Peter Linzer, University of Houston Law Center
63. Lydia Pallas Loren, Lewis & Clark Law School
64. Michael J. Madison, University of Pittsburgh School of Law
65. Gregory P. Magarian, Washington University-St. Louis School of Law
66. Phil Malone, Harvard Law School
67. Christian E. Mammen, Hastings College of Law University of California-San Francisco
68. Jonathan Masur, University of Chicago Law School
69. Andrea Matwyshyn, Wharton School of Business University of Pennsylvania
70. J. Thomas McCarthy, University of San Francisco School of Law
71. Aleecia M. McDonald, Stanford University
72. William McGeveran, University of Minnesota Law School
73. Stephen McJohn, Suffolk University Law School
74. Mark P. McKenna, Notre Dame Law School
75. Hiram Melendez-Juarbe, University of Puerto Rico School of Law
76. Viva Moffat, University of Denver College of Law
77. Ira Nathenson, St. Thomas University School of Law
78. Tyler T. Ochoa, Santa Clara University School of Law
79. David S. Olson, Boston College Law School
80. Barak Y. Orbach, University of Arizona College of Law
81. Kristen Osenga, University of Richmond School of Law
82. Frank Pasquale, Seton Hall Law School
83. Aaron Perzanowski, Wayne State University Law School
84. Malla Pollack Co-author, Callman on Trademarks, Unfair Competition, and Monopolies
85. David G. Post, Temple University School of Law
86. Connie Davis Powell, Baylor University School of Law
87. Margaret Jane Radin, University of Michigan Law School
88. Glenn Reynolds, University of Tennessee Law School
89. David A. Rice, Roger Williams University School of Law
90. Neil Richards, Washington University-St. Louis School of Law
91. Michael Risch, Villanova Law School
92. Betsy Rosenblatt, Whittier Law School
93. Matthew Sag, Loyola University-Chicago School of Law
94. Pamela Samuelson, University of California-Berkeley Law School
95. Sharon K. Sandeen, Hamline University School of Law
96. Jason M. Schultz, UC Berkeley Law School
97. Jeremy Sheff, St. John’s University School of Law
98. Jessica Silbey, Suffolk University Law School
99. Brenda M. Simon, Thomas Jefferson School of Law
100. David E. Sorkin, John Marshall Law School
101. Christopher Jon Sprigman, University of Virginia School of Law
102. Katherine J. Strandburg, NYU Law School
103. Madhavi Sunder, University of California-Davis School of Law
104. Rebecca Tushnet, Georgetown University Law Center
105. Deborah Tussey, Oklahoma City University School of Law
106. Barbara van Schewick, Stanford Law School
107. Eugene Volokh, UCLA School of Law
108. Sarah K. Wiant, William & Mary Law School
109. Darryl C. Wilson, Stetson University College of Law
110. Jane K. Winn, University of Washington School of Law
111. Peter K. Yu, Drake University Law School
112. Tim Zick, William & Mary Law

For further background on the internet copyright bills, see:

• The Tide Is Turning Against SOPA … And We Might Actually Succeed In Stopping It

• SOPA Is “Unconstitutional”, Would “Criminalize” the Internet … Modeled On China

• Job Creators, Internet Architects and Security Experts Hate SOPA

• Sopa Would DESTROY Jobs and the Economy … So Why are Unions Supporting It?

• Hypocrite Alert: SOPA Supporters Encouraged People to Use File-Sharing Software for Pirating Copyrighted Material