That every person for every injury done him in his goods, land or person, ought to have remedy by the course of the law of the land and ought to have justice and right for the injury done to him freely without sale, fully without any denial, and speedily without delay, according to the law of the land. 1Chief Justice Thomas Philips, The Constitutional Right to a Remedy, 78 New York University Law Review 1309 (2003), paraphrasing Arkansas Constitution art. II, § 13; Illinois Constitution art. I, § 12; Maine Constitution art. I, § 13; Maryland Constitution Decl. of Rights, art. 19; Massachusetts Constitution pt. 1, § 11; Minnesota Constitution art. 1 § 8; New Hampshire Constitution pt. I, art. 14; Rhode Island Constitution art. I, § 5; Vermont Constitution ch. I, art. 4; and Wisconsin Constitution art. I, § 9.

Ineffective remedies are often just as bad as no remedy at all. While innovative, sustainable services continue to develop, offering consumers exciting and convenient new ways to enjoy content that remunerates creators, rogue actors still find it easy to profit off the misappropriation of someone else’s time and talents.

The Stop Online Piracy Act (H.R. 3261) gives creators more tools to address this type of commercial piracy. Since it was introduced, however, it has been subject to much criticism, and with the House Judiciary Committee holding a hearing on the bill Wednesday, the criticism is sure to continue.

While some of the criticism is legitimate — few bills are perfect when they are first introduced, hence the need for hearings — a lot of it is unfounded. One thing that should be kept in mind is that SOPA does not expand the scope of copyright law, of what is protected or what is not.

The Stop Online Piracy Act creates new remedies, it does not create any new liability.

Section 103 of SOPA provides for a procedure, similar to the notice-and-takedown procedure of the DMCA, that allows copyright holders to better protect their work against commercial misappropriation. This procedure is limited to use against sites that are, as the bill terms them, “dedicated to theft of U.S. property.” The bill includes three separate definitions for a site “dedicated to theft of U.S. property.”

To see why SOPA doesn’t expand the scope of copyright law, compare its definitions to current law. These definitions, for sites “dedicated to the theft of U.S. property”, incorporate existing standards of liability. That is, sites or services that fall within the scope of these definitions are already potentially liable for copyright infringement. All Section 103 of SOPA does is give copyright holders a new tool to more effectively protect their work from commercial misappropriation.

No legitimate purpose

The first definition of a site “dedicated to the theft of U.S. property” under SOPA is one that “is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates” copyright infringement.

The language of this definition mirrors that of the existing provision in the DMCA that prohibits devices that circumvent technological protection measures:

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title. 217 USC § 1201(a)(2).

But in a broader sense, this definition draws upon the theory of liability originally set forth in Sony Corporation v. Universal City Studios — the “Betamax” case. There, the Supreme Court held that the sale of a good “does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.” This holding borrowed from the staple article of commerce doctrine in patent law. A corollary to this doctrine is that “where an article is ‘good for nothing else’ but infringement … there is no injustice in presuming or imputing an intent to infringe.” 3Metro-Goldwyn-Mayer v. Grokster, 545 US 913, 932 (2005).

There is recognition in Sony itself that its holding on contributory infringement doesn’t extend to products or services which have no purpose other than infringement. Justice Blackmun said in his dissent, “If virtually all of the product’s use, however, is to infringe, contributory liability may be imposed; if no one would buy the product for noninfringing purposes alone, it is clear that the manufacturer is purposely profiting from the infringement, and that liability is appropriately imposed.” Blackmun’s dissent bore a strong resemblance to an earlier draft of what, at one point, was the majority opinion in Sony. 4Jonathan Band & Andrew J.  McLaughlin, The Marshall Papers: A Peek Behind the Scenes at the Making of Sony v. Universal, 17 Columbia – VLA Journal of Law & the Arts 427 (1993). The language of that draft bears an even stronger resemblance to SOPA’s definition of a site “dedicated to theft of U.S. property”: “Sony can be liable for contributory infringement only if the Betamax’s ‘most conspicuous purpose’ or ‘primary use’ is an infringing use.” 5Draft Majority Opinion of Associate Justice Harry A. Blackmun at 35 (June 13, 1983).

Willful Blindness

Willful blindness is sometimes also referred to as “Nelsonian knowledge“, after flag office Horatio Nelson, who fought for the British Royal Navy in the late 1700s and early 1800s. The following story explains why — this particular story also serves as the origin of the phrase “turning a blind eye.”

When some of your great grandfathers were little boys, there was a great war between England and France. Many of the battles were fought at sea. England had good ships and brave sailors and bold captains in plenty; but the best sailor and the boldest captain of them all was Lord Horatio Nelson.

[…] In one battle this brave officer lost an eye. In another he lost an arm; but though he had but one eye and one arm, he was always the first in the fight and the last out. He never would give in. At the battle of Copenhagen two of his ships ran aground. Admiral Parker, who had command of the fleet, thought Nelson had no chance of winning: so he hung out the signal to “stop fighting.”

But Nelson took no heed of it. His one eye danced with glee as the guns roared, and ropes and bits of timber flew through the air. When a shot struck the mast of his own ship and broke it to hits, he only said. “Warm work this! But I wouldn’t lie out of it for all the world!” Some one told him that the signal was up to “stop fighting.”

He laughed: and putting the glass to his blind eye, he said: “I don’t see the signal. Keep mine flying for closer battle. Nail it to the mast.” And he kept on fighting till he won the battle; and for his great victory he was made lord admiral of the fleet. 6The Brave Lord Nelson, Timely Topics, Vol. v. No. 1, pg 286 (Sept. 7, 1900).

The second definition of a site “dedicated to theft of U.S. property” under SOPA is a site where “the operator of the U.S.-directed site is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute” copyright infringement.

The language is taken directly — word for word — from last May’s Supreme Court opinion for Global-Tech Appliances v. SEB. The Court stated that “a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing.”

Global-Tech presented the Court with the question of whether willful blindness can satisfy the knowledge requirement of 35 U.S.C. § 271. However, willful blindness itself is an incontrovertible part of the law. The Court explains:

The doctrine of willful blindness is well established in criminal law. Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances. The traditional rationale for this doctrine is that defendants who behave in this manner are just as culpable as those who have actual knowledge. It is also said that persons who know enough to blind themselves to direct proof of critical facts in effect have actual knowledge of those facts.

The Court notes the wide acceptance of the concept of willful blindness. It begins its survey with a case from 1899 which embraced the idea and traces the doctrine through the 20th century. Today, “every Court of Appeals—with the possible exception of the District of Columbia Circuit, has fully embraced willful blindness, applying the doctrine to a wide range of criminal statutes.”

Finally, the Supreme Court presents a general formulation of willful blindness. “While the Courts of Appeals articulate the doctrine of willful blindness in slightly different ways, all appear to agree on two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.”

The doctrine of willful blindness applies to copyright law just as much as it does to law in general. 7In re Aimster Copyright Litigation, 334 F.3d 643, 650 (7th Cir. 2003), “Willful blindness is knowledge, in copyright law as it is in the law generally”; See also Island Software and Computer Service v. Microsoft, 413 F.3d 257, 263 (2nd Cir. 2005).

Inducement

The final definition of a site “dedicated to theft of US property” under SOPA is a site operated “with the object of promoting, or has promoted, its use to carry out acts that constitute” copyright infringement, “as shown by clear expression or other affirmative steps taken to foster infringement.”

Like the definition for willful blindness, this definition is taken directly from the Supreme Court. In Metro-Goldwyn-Mayer v. Grokster, the Court stated that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”

The Court dubs this “inducement”, and it has been recognized as a form of secondary liability within copyright law for decades. In 1971, for example, the Second Circuit said that “one who, with knowledge of the infringing activity induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.” 8Gershwin Publishing v. Columbia Artists Management, 443 F.2d 1159, 1162.

Effective recourse

The Stop Online Piracy Act incorporates long standing principles of liability, principles that have applied to service providers and web site operators since the beginnings of the world wide web. The actions that would subject a provider to SOPA’s provisions are the same ones that would subject it to a copyright infringement suit under existing law and are actions that would not be protected under DMCA safe harbors.

What has been missing has been effective remedies against operators and providers that clearly fall within the scope of this liability: sites that have been purposely designed for the sole purpose of infringement, sites whose operators have taken deliberate steps to blind themselves from the use of their sites to engage in wrongdoing, and sites whose operators have actively promoted the use of their sites for piracy. For smaller content producers and individuals especially, this lack of effective recourse has proven damaging.

The goal of SOPA is to remedy this lack of effective recourse, and ensure that creators have “justice and right” freely, fully, and without delay for the injury caused by rogue sites.

References   [ + ]

1. Chief Justice Thomas Philips, The Constitutional Right to a Remedy, 78 New York University Law Review 1309 (2003), paraphrasing Arkansas Constitution art. II, § 13; Illinois Constitution art. I, § 12; Maine Constitution art. I, § 13; Maryland Constitution Decl. of Rights, art. 19; Massachusetts Constitution pt. 1, § 11; Minnesota Constitution art. 1 § 8; New Hampshire Constitution pt. I, art. 14; Rhode Island Constitution art. I, § 5; Vermont Constitution ch. I, art. 4; and Wisconsin Constitution art. I, § 9.
2. 17 USC § 1201(a)(2).
3. Metro-Goldwyn-Mayer v. Grokster, 545 US 913, 932 (2005).
4. Jonathan Band & Andrew J.  McLaughlin, The Marshall Papers: A Peek Behind the Scenes at the Making of Sony v. Universal, 17 Columbia – VLA Journal of Law & the Arts 427 (1993).
5. Draft Majority Opinion of Associate Justice Harry A. Blackmun at 35 (June 13, 1983).
6. The Brave Lord Nelson, Timely Topics, Vol. v. No. 1, pg 286 (Sept. 7, 1900).
7. In re Aimster Copyright Litigation, 334 F.3d 643, 650 (7th Cir. 2003), “Willful blindness is knowledge, in copyright law as it is in the law generally”; See also Island Software and Computer Service v. Microsoft, 413 F.3d 257, 263 (2nd Cir. 2005).
8. Gershwin Publishing v. Columbia Artists Management, 443 F.2d 1159, 1162.

17 Comments

  1. Curiously, the bill doesn’t provide any protection against copyfraud, allowing anyone to claim copyright to anything (including already public domain material) without verification of their legal status as copyright holders.

  2. Copyfraud seems to me to be one of those virtual problems that people bring up in discussions like these. “Virtual” because claiming copyright and the ability to enforce that claim are two different things entirely. As long as a mechanism exists for the purpose of evaluating conflicting claims – such as when one party claims copyright over a work that another party claims to be in the public domain – the interests of both parties are adequately protected.

    • … because claiming copyright and the ability to enforce that claim are two different things entirely. As long as a mechanism exists for the purpose of evaluating conflicting claims – such as when one party claims copyright over a work that another party claims to be in the public domain – the interests of both parties are adequately protected.

      The line between a claim of ownership and the ability to enforce that claim is not nearly so bright as you suggest, at least not in SOPA. A person claiming ownership of a work may send a notice to a payment provider of advertising network claiming that a site is “dedicated to the theft of U.S. property,” and the payment processor or advertising network is then required to (“shall”) stop doing business with that site (unless the owner of the site jumps through various hoops and agrees to certain onerous terms in order to contest the accusation). There may be penalties for misrepresentation, but the claim itself is sufficient to impose obligations on third parties to stop doing business.

      • The Bill targets sites that have no other useful purpose to exist but to infringe…
        If you are such a site, than yeah.. i can see how you’re upset.

        Otherwise this is a compromise. If were up to me, the language would be much stronger, and the scope much broader.

      • If you’re a LEGAL site, there’s ZERO difference between this and the DMCA. You still have the same protections as under DMCA, and there is NO further burden.

        Making up boogey-man scare tactics is nothing new… the same stuff was said about the DMCA before it was passed.

        • The difference is all revenue streams don’t get cut off as soon as someone accuses you. If your a start up that is used 99% of the time for legitimate purposes if someone reports them for a 1% mistake they can be bankrupt by the time they get it straightened out, legal fees aren’t cheap and any downtime just means your customers find someone else. This greatly increases 3rd party liability because any site that provides a communication service (i.e. facebook, youtube, twitter) can be destroyed because of one bad user. Obviously those companies are now big enough to survive and fight erroneous claims, but they didn’t start that way. But even still how long will it take Viacom make a claim against youtube under this, I bet the letter is already typed and addressed.

      • “and the payment processor or advertising network is then required to (“shall”) stop doing business with that site (unless the owner of the site jumps through various hoops and agrees to certain onerous terms in order to contest the accusation).”

        Signing a simple statement saying that your website isn’t involved in the theft of US property can hardly be considered “jump[ing] through [] hoops.” But I guess someone who is indeed running a site involved in the theft of US property would consider those as “onerous terms.”

        • If one user on my blog posts a link to a movie and it gets reported I can’t say my site wasn’t used for that, now I have to prove its not dedicated to it. Seeing as how rojadirecta is still waiting for their day in court I highly doubt it will be as easy as you claim. A lot of content owners have already expressed dissatisfaction sites that aren’t dedicated to infringement that will not be able to afford to fight this. Like music blogs that the labels provided all the cases of infringement that were sited and the internet wayback machine.

          • oh BS,
            This bill PROTECTS site owners who act resonably.
            You’re not going to get cut off for one post to an infringing site. If you happen to get a notice from a creator, as long as you take down the offending link, nothing will happen to you.
            Besides, the example you gave is NOT WHAT THE BILL IS ABOUT.
            If you’re running TPB or NinjaVideo.. than yeah, you will get shut off and you do deserve it.

          • I agree its NOT WHAT THE BILL IS ABOUT, the problem is it is so broadly written that it allows for things like my example. Those are sites content owners have already called rogue sites and already have expressed interest in shutting down. Do you really believe that a horribly written law won’t effect people other than the targets you want to see burn?

            ” If you happen to get a notice from a creator, as long as you take down the offending link, nothing will happen to you.” By the time I get my notice I am already blocked from the DNS and receiving no revenue. If I have to argue fair use, that this was a one-off case of infringement or something along those lines I could be out of business before a court says what I was doing was perfectly legal. Punishment should not come before it is proved I am in violation of the law. Infringement is not a “you know it when you see it issue.” As I already stated WB has claimed infringement on content it provided to blogs, thanks to ICE those blogs are still gone and have been threatened with criminal charges if they dare to fight the claim. Similar mistakes in the future can put companies out of business with SOPA. This bill allows the content owner to file a complaint that has no judicial review.

            I agree shut down TPB and ninjavideo(which was already shut down, without SOPA), but this bill goes way too far. There is too much liability for anyone who allows user generated content and the is absolutely no due process. I am all for a law that takes down the people who you like to shout THIS LAW IS INTENDED TO TARGET, but this bill they want to pass will harm way too many innocent bystanders and new companies trying to legally compete with big industry players.

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