05 January 2012

Don't Bend Over for the SOPA

There is substantial (justified) controversy right now about the proposed Stop Online Piracy Act and alternate versions that have been proposed. The attacks variously construe SOPA as an "internet kill switch for Hollywood", a "censorship engine for the Internet", and various other ills that largely boil down to assertions that BigMedia will use SOPA to entirely shut down parts of the 'net that contain some purportedly unauthorized copies of BigMedia-controlled works, with substantial collateral damage to other exchanges of works and to other political and commercial activity.

The obvious problem here is a jurisdictional one: The DMCA (17 U.S.C. § 512) simply does not apply outside the United States... and many United States-based pirates use RIM/Blackberry formalisms to evade jurisdiction in the United States. Then, too, a large proportion of the pirate clientele is in the United States, making this all the more frustrating for US-based holders of copyrights. Worse yet — and largely through dubious attempts at administrative convenience and efficiency (the fifth, nonstatutory, but usually controlling fair-use factor) — BigMedia has undermined the credibility of the DMCA system in the first place. Worst of all, too damned many providers are getting too damned much revenue from traffic (whether clicks on advertisements or whatever) to be very interested in actually complying with proper DMCA notices1... even if they were predisposed to comply with the law as it is instead of with the law as they believe it should be.

The real problem with bending over for the SOPA, though, is that it is founded upon fundamental misunderstandings of both creative activity and the power relationships involved. I'm not going to delve into the dubious enforcement mechanisms or anything else; I propose, instead, that any such power, authority, standing, and right must be limited to the actual creator — not to a mere licensee (publisher, record company) or patron (multimedia). I do not claim that the following changes will completely fix SOPA — but I think they will enable an actual, meaningful conversation concerning its merits that very well may result in something that works without too much collateral damage.


H.R. 3261 is amended by adding the following new Section 3:

"3. Limitations on Standing. Notwithstanding the provisions of 17 U.S.C. § 201(b) or any transfer of copyright inconsistent with the succession of interest established in 17 U.S.C. § 203 or 17 U.S.C. § 304(c) as would apply to the work in question, only the Creator of a work as defined in this Act has standing to request any action under § 102 or § 201 of this Act, or to take any action under § 103 of this Act. This limitation on standing under this Act does not act to diminish the rights of any copyright holder or licensee under 17 U.S.C. § 106, 17 U.S.C. § 106A, or 17 U.S.C. §§ 501–513, but applies only to this Act."

H.R. 3261 is further amended by adding the following new Section § 101(25):

"CREATOR — The term 'Creator' means:

   "(a) For audio recordings without visual component, the natural person writer (or majority of multiple natural person writers) plus natural person performer (or majority of multiple natural person performers) of the audio recording at issue;

   "(b) For audiovisual or purely visual recordings, the natural person writer (or majority of multiple natural person writers) plus natural person director (or majority of multiple natural person directors) of the audiovisual or visual recording at issue;

   "(c) For all other works, the natural person writer (or majority of multiple natural person writers).

"For the purposes of this definition only, 'natural person writer' means an individual who contributed discernable original content otherwise protected under the Copyright Act and consistent with Feist Publications, Inc. v. Rural Telephone Services Co., Inc., 499 U.S. 340 (1991), and explicitly excluding any person or entity who might claim 'authorship' pursuant to 17 U.S.C. § 201(b)."

The intended — and, to at least a first order approximation, actual — effect of this language is to remove mere licensees and BigMedia distributors from decisionmaking authority over SOPA incidents. Admittedly, there are some "problem children" among Creators, such as the descendants of James Joyce and Margaret Mitchell, but they are the exception, rather than the rule... and would still have to comply with everything else in SOPA to have any influence. This also prevents mere licensees and distributors from overreaching into rights that were not at issue at the time they acquired whatever rights they were initially granted, and avoids a serious constitutional and international-law problem with forcing foreign actors to recognize the constitutionally dubious work-for-hire doctrine that redefines the "author" of a work to be what the rest of the world — and, in particular, the English-speaking world in the 1780s — would have called the "patron." This is a fundamental problem with the US conception of copyright, particularly measured against both the English common law and the Statute of Anne (1710). It is also the means by which BigMedia stuck its nose into the copyright tent in the first place, inconsistent with the purposes of the Intellectual Property Clause (to "promote progress in the useful arts and sciences", in modern capitalization).

The proposed amendment is just plain more fair to everyone involved, as it allows the actual author to laugh off trivial infringements... and puts pressure on licensees and distributors to actually and effectively exploit their rights in a way that defeats piracy by providing a high-quality product at a reasonable price.

  1. I'm going to blow my own horn here a bit. We succeeded with an attack against this last problem in Ellison, in which the Ninth Circuit made clear that § 512(i) — requiring both an effective policy for dealing with infringements (especially repeat infringements/infringers) and reasonable implementation of that policy — is not mere surplus verbiage. We were prepared to go well beyond the defect relied upon by the Ninth Circuit at trial and demonstrate that the ISP had not "reasonably implemented" the defective policy that it did have.

    I suppose that it's possible that virtually every ISP that has been confronted with a credible, fact-based § 512(i) attack has immediately settled thereafter... which would explain why there are virtually no opinions after Ellison that focus on that aspect of the DMCA. Well, actually, it's not: I have personal knowledge that some of the big cases out there should have (on the basis of documentation in my possession and my personal experience interacting with specific ISPs) included a § 512(i) attack on the ISP's eligibility for the safe harbor, but did not. That explicitly includes the now-completed Grokster action; the various assaults on LimeWire; and the current brouhahas regarding YouTube and HotFile. It is not, however, limited to those examples.

    <SARCASM>Of course, that would require relying upon actual facts and performing a prefiling investigation adequate under Fed. R. Civ. P. 11(b)(3), which is inconsistent with the policy stance of BigMedia and too much of BigLaw. Further, it would diminish the motion practice, meaning that BigLaw personnel would have to become familiar with the facts in their cases instead of quotemining from Westlaw/Lexis. Yeah, that's gonna happen Real Soon Now.</SARCASM>