In­ter­net bills spark a black­out

Wide­spread protests over at­tempts to combat trade mark and copy­right in­fringe­ments that oc­cur on­line

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - HER­MAN BLIG­NAUT

TWO re­lated bills in the US have re­cently been the topic of much con­tro­versy. Public out­cries and wide­spread on­line protests were fol­lowed by an un­prece­dented in­ter­net black­out on Jan­uary 18. The in­ter­net black­out was sup­ported by the likes of Google, Face­book, Red­dit and Wikipedia, to name but a few.

The black­out was not only sup­ported by the in­ter­net high-and-might­ies but also by thou­sands of lesser known sites ral­ly­ing their users’ sup­port against the bills.

Such was the na­ture of the black­out that Wikipedia, for ex­am­ple, took its English-lan­guage site en­tirely off­line on Jan­uary 18, ren­der­ing its wis­dom use­less to mil­lions of in­ter­net users.

At the heart of the con­tro­versy are two bills on which the US Se­nate in­tended to cast its vote on Jan­uary 24. How­ever, the ma­jor public out­cry crit­i­cis­ing the bills (with the in­ter­net black­out as the cherry on the prover­bial cake), per­suaded the US Se­nate to post­pone the vote on the bills.

The Se­nate ma­jor­ity leader made the fol­low­ing brief state­ment:

“There is no rea­son that the le­git­i­mate is­sues raised by many about this Bill can­not be re­solved.... I en­cour­age him (ie. the se­na­tor act­ing as spon­sor to the Bill) to con­tinue en­gag­ing with all stake­hold­ers to forge a bal­ance be­tween pro­tect­ing Amer­i­cans’ In­tel­lec­tual Prop­erty and main­tain­ing open­ness and in­no­va­tion on the in­ter­net.”

The two bills at is­sue are the Stop On­line Piracy Act (SOPA) and Pro­tect IP Act (PIPA). They are closely re­lated in that both in­tend com­bat­ing trade mark and copy­right in­fringe­ment on the in­ter­net, im­pos­ing not only sanc­tions against so-called in­fring­ing sites but also obli­ga­tions on in­ter­net ser­vice providers, search en­gines, pay­ment net­work providers and in­ter­net ad­ver­tis­ing ser­vices.

Writ­ing from the per­spec­tive of an IP prac­ti­tioner in SA, and recog­nis­ing the ne­ces­sity of lo­cal law re­form par­tic­u­larly on the pro­tec­tion of copy­right, the two bills are in­ter­est­ing and speak of a na­tion adamant to pro­tect IP de­spite the con­stant chal­lenges faced by tech­no­log­i­cal ad­vances.

PIPA is more limited in its am­bit than SOPA. It also ap­pears that it is the lesser con­tro­ver­sial bill of the two.

In terms of PIPA, the US Gov­ern­ment or a “qual­i­fy­ing plain­tiff” (that is ap­pli­ca­ble holder of in­tel­lec­tual prop­erty rights) can ob­tain in­junc­tive re­lief against the do­main name used by an in­ter­net site ded­i­cated to in­fring­ing ac­tiv­i­ties, or against a reg­is­trant of such do­main name, or the owner or op­er­a­tor of such in­ter­net site ded­i­cated to in­fring­ing ac­tiv­i­ties, to cease and de­sist from un­der­tak­ing any fur­ther ac­tiv­ity as an in­ter­net site ded­i­cated to in­fring­ing ac­tiv­i­ties.

PIPA also pro­vides that in­ter­net ad­ver­tis­ing agen­cies may not con­tract to ren­der their ser­vices to in­fring­ing sites and, where such ser­vices have al­ready been ren­dered, to take tech­ni­cally fea­si­ble and rea­son­able mea­sures to pre­vent such fur­ther ser­vices and to cease mak­ing avail­able ad­ver­tise­ments for that site.

SOPA at­tempts to tackle a va­ri­ety of is­sues that in­clude:

Grant­ing in­junc­tive re­lief against the reg­is­trant of a do­main name used by an in­fring­ing site;

The on­line stream­ing of copy­righted works that in­fringe copy­right; and

In­ter­net sites traf­fick­ing in in­her­ently dan­ger­ous goods or ser­vices (in­clud­ing coun­ter­feit goods).

Un­der SOPA a va­ri­ety of obli­ga­tions af­fect­ing third par­ties may arise once an in­junc­tion has been or­dered against the reg­is­trant of a do­main name used by an in­fring­ing site. Such obli­ga­tions in­clude the re­quire­ment that:

A ser­vice provider must take tech­ni­cally fea­si­ble and rea­son­able mea­sures to pre­vent ac­cess by its sub­scribers to the in­fring­ing site;

An in­ter­net search en­gine must take tech­ni­cally fea­si­ble and rea­son­able mea­sures to pre­vent the in­fring­ing site from be­ing served as a di­rect hy­per­text link;

A pay­ment net­work provider must take tech­ni­cally fea­si­ble and rea­son­able mea­sures to sus­pend its ser­vice from com­plet­ing pay­ment trans­ac­tions to the in­fring­ing site; and

An in­ter­net ad­ver­tis­ing ser­vice that con­tracts to pro­vide ad­ver­tis­ing to or for the in­fring­ing site must take tech­ni­cally fea­si­ble and rea­son­able mea­sures to pre­vent its ser­vice from pro­vid­ing and mak­ing avail­able ad­ver­tise­ments to the in­fring­ing site.

On the stream­ing of copy­righted works — which in­clude com­puter pro­grammes, mu­si­cal works, mo­tion pic­tures or other au­dio­vi­sual work and sound record­ings — SOPA in­cludes the fol­low­ing sanc­tion:

“Any per­son who wil­fully in­fringes a copy­right shall be pun­ished as pro­vided un­der sec­tion 2319 of ti­tle 18, if the in­fringe­ment was com­mit­ted by the dis­tri­bu­tion or public per­for­mance of a work be­ing pre­pared for com­mer­cial dis­sem­i­na­tion, by mak­ing it avail­able on a com­puter net­work ac­ces­si­ble to mem­bers of the public, if such per­son knew or should have known that the work was in­tended for com­mer­cial dis­sem­i­na­tion.”

A pro­hi­bi­tion such as this causes ma­jor con­cern to a web­site such as Youtube, which no doubt on a daily ba­sis fa­cil­i­tates the stream­ing of films, sound record­ings and other works in which copy­right may sub­sist.

The main ob­jec­tions to SOPA and PIPA in­cluded claims that the def­i­ni­tions in the pro­posed acts are too broad and that it could be used against le­git­i­mate sites and busi­nesses.

A fur­ther claim is that the bills are po­ten­tial job killers, which is ques­tion­able par­tic­u­larly as SOPA has as its ob­jec­tive the pro­mo­tion of pros­per­ity, creativ­ity, en­trepreneur­ship and in­no­va­tion by com­bat­ing the theft of US prop­erty. What­ever the case may be, it is pos­si­ble that many of the sites who par­tic­i­pated in the in­ter­net black­out — and prob­a­bly more so even many who did not — are con­cerned with the pos­si­ble im­pli­ca­tions that PIPA and SOPA may have on their busi­nesses.

Per­haps they should be re­minded that the law looks at each case on its own mer­its and that if they are le­git­i­mate sites they have noth­ing to fear.

Be that as it may, be­tween in­tel­lec­tual prop­erty rights and main­tain­ing open­ness and in­no­va­tion on the in­ter­net, it ap­pears that democ­racy walked away as the win­ner.

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