SIGNIFICANCE OF SOPA AND PIPA FOR EUROPE

Under SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act), US Congress sought to prevent internet users from accessing foreign sites with pirated content by having service providers block those sites’ domain names. The proposed legislation also threatened to punish any search engine providers, payment network providers and internet advertising services that continued to support those infringing sites.

Even though SOPA and PIPA are US bills, it is important to remember that the whole rationale of these new laws is tackling copyright infringement outside the US.

SOPA and PIPA’s primary supporters are organizations – the Motion Picture Association of America (MPAA) and Rupert Murdoch–owned News Corp. among them – that invest heavily in creating movies, television programs and other content that makes its way to the internet. The legislation’s most vocal opponents have included Google, Twitter, Yahoo and Wikipedia – web-based entities that benefit from this content.

In protest of the legislation, Wikipedia, Google, WordPress, Reddit and some 30.000 other websites participated in a 24-hour “Internet blackout” last week. The protests inspired voters to deluge their congressmen with phone calls and emails in protest of the bills as well, and several congressmen either came out in opposition to the bills or said Congress should take more time to reconsider them.

As a result of all the protests, the procedural vote on PIPA scheduled for 24 January has been postponed. In this vote, the Senate would decide whether or not to end debate on this bill and bring it forward for a final up-or-down vote. For a vote to be successful, three-fifths of the Senate (or 60 Senators) had to vote in the positive, and it seemed very unlikely that the vote on PIPA would have been successful. Also, the House Judiciary Committee has decided to postpone consideration of SOPA until there is wider agreement on a solution.

Since SOPA and PIPA are US bills, the focus has been on the US response to them, but its influence outside the US is intended to be enormous. A letter to the US Congress, written by a group of European Parliamentarians worried about the “extraterritorial effects” of SOPA and PIPA, offers a different perspective on the bills. For example, it leads with a reference to the EU-US Summit, held in Washington on 28 November 2011 – this is the letter by the European Parliamentarians dated 12 December 2011:

“We, Members of the European Parliament, civil society organizations and businesses would like to draw your attention to the extra territorial effects of current intellectual property rights (IPR) enforcement acts being proposed in the US Congress. The two houses are expected to vote on the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT IP) and the Stop Online Piracy Act (SOPA).

The European Parliament, in its joint motion for a resolution on the EU-US Summit of 28 November 2011, objects the proposed legislation by stating:

“Stresses the need to protect the integrity of the global internet and freedom of communication by refraining from unilateral measures to revoke IP addresses or domain names;”

Several Members of Congress as well as the business and civil society community have spoken out against the proposed legislation. We would like to thank them for that and join their objections for the following reasons.

Even though the two proposed acts are different, their aim, scope and effect is more or less the same and we will treat them together in this letter.

We are concerned that SOPA and PROTECT IP will be detrimental to internet freedom, internet as a driver for economic growth and for fundamental rights, not only in the EU, but globally. The legitimate aim is to halt infringements of intellectual property rights online. However, since the internet is used for nearly every aspect of citizens’ lives, business activity or government regulation, the effects of these acts will lead to enormous collateral damage.

The acts suggest blocking of websites by court order or in the Domain Name System (DNS), a worldwide resource and essential component for the functionality of the internet. Not only the infringing part of a website would be blocked, but a whole domain would be made inaccessible, thereby violating the freedom of expression. Further, by blocking at the DNS level, these websites would be made inaccessible far beyond US jurisdiction, as the websites would be inaccessible world wide.

The definitions in the two acts in question are too vague to target only websites which enable infringement on a large scale. The acts jeopardize many positive activities and may overwrite laws on online services, safe harbour (or ‘intermediary liability’). Companies should not be held liable for what consumers use a service or product for. Is the owner of a street responsible for an accident on its pavement, or should be hold the individual responsible for speeding accountable?

By maintaining vague definitions in these far-reaching acts, companies are faced with an increased risk for liability. This will have an adverse effect on investment, as the risk for entrepreneurs increases beyond levels which stimulate innovation.

Companies wishing to offer online services will be forced to monitor all communication on their platforms and filter anything which could possibly be an infringement of IPR. The methods of monitoring would almost certainly challenge people’s fundamental rights. Considering the world wide character of the internet, European companies will be forced to adhere to US standards to prevent DNS blocking. Article 15 of the European E-Commerce Directive prohibits obligations for the general monitoring of their services. The European Court of Justice has recently ruled in the Scarlet/SABAM case that monitoring and filtering of communication online is a breach of fundamental rights such as privacy, freedom of communication and freedom of information and should not be applied to halt infringements of IPR.

Finally, blocking of websites, by DNS or otherwise, severely undermines America’s credibility in the global information society. Diplomatic efforts for a free and open internet will be rendered useless, since repressive regimes will be free to install filters or block websites which enable or facilitate information exchanges deemed illegal in their jurisdiction. We have already seen several examples of governments misusing filters aimed at halting IPR infringements. It would allow China to justify its Great Firewall, and Iran to legitimize its ´Halal internet´.

Concluding, SOPA and PROTECT IP will create tensions across the Atlantic in a time where we need to work more closely together. We ask you to vote against SOPA and PROTECT IP and to work with us on effective laws, which enable a fair remuneration of artists and creators online, without violating fundamental rights or fragmenting the free and open internet as we know it. We also believe in close cooperation in promoting internet freedom world wide, in line with our foreign policy objectives.”

So far, the letter to US Congress.

As of last week, SOPA and PIPA have been officially postponed indefinitely, but it is certain that Congress and the entertainment industry will bring these bills back to the table again. To be continued …