While the concerns about SOPA may be exaggerated or unrealistic, individuals, businesses, and web hosts will need to make some changes to existing policies and procedures in order to comply with this proposed legislation. Although Congress has delayed the second half of the SOPA hearing until next year, businesses and individuals would be wise to correct any difficulties within their own domains to avoid sanctions under current or future laws. If SOPA or similar laws are enacted, there is likely to be a period of transition and challenges within the courts, but the increase in censorship is likely to be negligible for most users. This type of law would make it more difficult for web hosts and others to turn a blind eye to piracy and infringement happening on their domains because a failure to comply with the law could lead to the domain being blocked by the government. This legislation is something to keep an eye on, but businesses and individuals who are currently in compliance with existing laws should not worry too much.
Existing Laws: The DMCA
Many of the opponents of SOPA seem to be deeply concerned about the freedoms that this proposed legislation might restrict. None of the existing copyright or anti-piracy laws led to the end of freedom of speech, rampant government censorship in the US, or the end of the Internet as we know it. On the other hand, none of the existing laws effectively ended online piracy or copyright infringement.
Most people who live in the US or do business in the US are aware of the Digital Millennium Copyright Act, which became effective in 1998. This law has had a big impact on web hosts, service providers, and individuals regarding copyright infringement. Title II of the DMCA creates a safe harbor for online service providers if such providers meet certain requirements and if they promptly delete or block access to material that allegedly infringes. This same provision also gives online service providers a safe harbor against liability to their users for blocking access to allegedly infringing materials, even if the infringement is disputed.
Although the DMCA has helped to reduce the amount of blatant infringement happening across the Internet, there have been some undesired side effects. Some companies and individuals have decided to engage in the war of the DMCA claims instead of legitimately competing in the marketplace. The first to file a DMCA complaint with a web host or other service provider can often succeed in at least temporarily blocking public access to the website of a competitor. Internet users complain that web hosts and other online service providers are quick to block content before investigating and that many companies are unaware of the exceptions to copyright law, which leads to content that is not infringing being improperly blocked or deleted.
A major shortcoming of the DMCA is its silence regarding links to infringing content. The issue of linking to infringing content was litigated, but the courts have only held website owners responsible in narrow circumstances. Website owners or hosts may be held liable if the company or individual has notice of an injunction prohibiting the posting of specific content and the poster attempts to get around the injunction by linking to the same infringing content on another website. Courts have also held site owners liable if they link to software designed to circumvent anti-piracy measures or if they link to content with the sole purpose of infringement.
SOPA attempts to specifically address and prohibit linking to pirated or infringing content. If this proposed legislation becomes law, the burden will be on individuals and web hosts to clarify their positions. Much of the clarification needed has already begun appearing on the Internet in response to web hosts and other service providers blocking allegedly infringing content. Individuals and companies are more frequently publishing licensing conditions or stating the exceptions to copyright law relied upon when the copyrighted work of another is used. Publishing this information has greatly reduced the amount of improperly blocked content by making it easy for web hosts and service providers to investigate whether the content is used with permission or not. Almost all hosts have developed terms of service that clearly address piracy and copyright infringement as violations of the terms and grounds for suspension or other sanctions. Hosts have a duty to block infringing content under the DMCA and will continue to have a duty to block such content under SOPA.
How SOPA Is Different
Hosts and individuals would have a duty to remove links to infringing content on their domains, websites, or services. This requirement causes a practical problem because many websites allow public users to post links in unmoderated forums or comments. Speculation has been rampant across the Internet that many large websites will be partially censored or completely blocked if SOPA becomes law. The reality is that only blatantly infringing content will be blocked, but there will be an increased burden on parties to ensure that there are no user-generated links to such content. There are likely to be battles in court, but the uncontrolled censorship and the end of free speech are unfounded fears that will be avoided because of the system of checks and balances of the US government.
SOPA also differs from the DMCA in that SOPA would allow the US government to block access to entire websites, even if web hosts choose not to. The US government would be able to change the Domain Name System of particular websites. DNS points every domain name to the IP address of the server where that website's content is hosted. Under SOPA, the US government could edit that system and change the DNS registry for infringing sites, redirecting viewers to an error page or content that does not infringe. Many Internet users have begun compiling emergency lists of the IP addresses of key websites that they believe may be blocked under SOPA. Other users have begun developing software that would allow US users to find the IP addresses of blocked websites and visit those sites by entering the IP address directly into the address bar, thereby avoiding the use of domain names that would redirect to error pages.
The majority of these emergency IP address lists seem to be focused on mainstream websites that already have copyright infringement provisions in place and that are actively taking steps to block infringing content. For those relatively mainstream websites have turned a blind eye toward infringement, SOPA is the least of their worries. Such companies and individuals could face sanctions under a variety of US laws, including existing US copyright laws and the DMCA. The most important differences between SOPA and existing laws are the power of the government to edit DNS and the stronger prohibition against linking to infringing content. Companies that have ignored infringement are in violation of existing laws and should take immediate steps to remove infringing content and suspend users who engage in piracy or infringement.
What Business Owners Can Do
Whether SOPA becomes law is something to watch but is relatively immaterial in relation to what business owners should be doing now. Web hosts, business owners, and other individuals that post content on the Internet should first be sure that the content that they are posting does not violate copyright law. If there is doubt, these posters should obtain licensing or clearly state the applicable exception to existing copyright law. Business owners should take steps to prevent end users from linking to or posting infringing materials. Forums and comments should be monitored and infringing users should be immediately suspended and their postings deleted. Web hosts can do their part by immediately removing infringing material and developing terms of service that allow for the suspension of users who ignore warnings not to infringe. The burden on hosts and business owners under SOPA will be very similar to the duties they face under the DMCA but with the added duty to avoid links to infringing content.