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Why is the Media Talking About SOPA Again: An Explainer

A number of recent news articles ([1] [2] [3]) have mentioned a controversial 2011-12 legislative effort known as “SOPA” (which was short for the Stop Online Piracy Act bill introduced in the House, along with its Senate counterpart the PROTECT IP Act).

Folks may have thought that SOPA ended after the massive Internet uprising on January 18, 2012 and mass Congressional rejection of the effort.  But as media coverage of the Sony leak showed, rightsholder constituencies have just moved from the relatively transparent halls of Congress to less public fora, like courts and federal agencies.

Why was SOPA problematic?

A Techdirt explainer, The Definitive Post On Why SOPA And Protect IP Are Bad, Bad Ideas, goes into extensive detail on this, including some issues that were specific to SOPA’s overbroad drafting and other chilling effects, but tl;dr: The site blocking remedies in SOPA would have been catastrophic to online speech and innovation, because they would have implicated non-infringing content, as I discuss below.

Why is what’s going on now like SOPA?

Site blocking was the goal in SOPA, and site blocking is still the goal.  As MPAA general counsel Steven Fabrizio said in an email that leaked after the Sony hack, “We start from the premise that site blocking is a means to an end.”  The cases discussed below demonstrate various strategies aimed at getting court orders issued against whole sites.

Why should we be concerned by attempts to achieve site blocking?

As alluded to above, site blocking is a problem because even if some content on a website may be allegedly infringing copyright, there is likely a lot of non-infringing content — or licensed content, or content that is fair use, or content that constitutes “tolerated use.”  The ability to wholesale disappear a site from the Internet without due process is extremely concerning for speech online, as well as the services that host it.

What types of legal strategies are being considered?

1.  Project Goliath

State law enforcement has threatened Google in Mississippi with subpoenas from Attorney General Jim Hood, which has been one avenue of pursuing site blocking remedies.  Google eventually responded by bringing suit in a Mississippi district court, as well as in several other districts in related cases.  The main case is Google v. Hood (5th Cir. Dkt. No. 15-60205), which DisCo discussed when the district court case was filed in February, with Matt concluding that now “parties must wait and see whether efforts to resurrect SOPA at the state level will succeed.”  The district court was skeptical of the Attorney General’s strategies, granting Google’s motion for a temporary restraining order and preliminary injunction, and denying Attorney General Hood’s motion to dismiss, a month later.  The court found that the investigation is in retaliation for Google’s refusal to engage in site blocking.  Hood appealed to the 5th Circuit, and briefing is now complete, with several amici filing on both sides (including CCIA’s brief in support of Google, joined by CEA and Engine).

In a related matter, Google has filed a motion against MPAA law firm (and Hood ghostwriter) Jenner & Block in D.C. district court to compel them to comply with subpoenas relevant to the litigation, Google Inc. v. Jenner & Block LLP (D.D.C. Dkt. No. 15-00707).  Similarly, Google also filed a motion against several MPAA members in a New York district court to compel them to comply with subpoenas relevant to the litigation, Google Inc. v. Twenty-First Century Fox, et al. (S.D.N.Y. Dkt. No. 15-00150).

2.  The ITC

The Federal Circuit heard oral arguments last week in ClearCorrect v. ITC (Fed Cir. Dkt. No. 14-1527), a case on whether the International Trade Commission (ITC) has the power to block digital bits and bytes at the border.  While this case was not filed by the motion picture industry, the MPAA weighed in along with the RIAA as amici curiae, and discussed the ITC as a forum for site-blocking in a memo leaked in the Sony hack, making this another post-SOPA attempt to achieve site-blocking through a court order, albeit this one via the specialized ITC rather than a traditional district court.  A New York Times editorial was opposed to unilaterally granting them this authority — and the Federal Circuit seemed to be skeptical as well.

3.  Non-party injunctions

Another broader post-SOPA phenomenon is rightsholders asking courts for preliminary injunctions against entities that are not named parties in a case.  Several new cases attempt to bind a large, indeterminate number of Internet intermediaries, non-parties who are not before the court and not acting in concert with the defendant — which appears to be a new trend in litigation practices.

One of these cases, Paramount et al. [MPAA] v. Does [MovieTube] (S.D.N.Y. Dkt. No. 15-5819), was filed by MPAA members against John and Jane Does as well as XYZ Corporations doing business as MovieTube, in which plaintiffs attempt to bind:

“third parties providing services used in connection with any of the MovieTube Websites and/or domain names for MovieTube Websites, including without limitation, web hosting providers, back-end service providers, digital advertising service providers, search-based online advertising services (such as through paid inclusion, paid search results, sponsored search results, sponsored links, and Internet keyword advertising), domain name registration privacy protection services, providers of social media services (e.g., Facebook and Twitter) and user generated and online content services (e.g., YouTube, Flickr and Tumblr), who receive actual notice of this Order”

All of these named companies, Google (which owns YouTube), Yahoo (which owns Flickr), Facebook, Twitter, and Tumblr filed an amicus brief in opposition to plaintiffs’ motion for a preliminary injunction, noting: “It is no exaggeration to say that such an injunction would bind the entire Internet.”

A hearing in this case was scheduled for yesterday, although the day before, counsel for plaintiffs filed a letter with the court stating that given that defendants have shut down their allegedly infringing websites, plaintiffs are no longer seeking a preliminary injunction, but still plan to “seek permanent relief as soon as possible.”

Litigation filed by Elsevier, Elsevier et al. v. Sci-Hub et al. (S.D.N.Y. Dkt. No. 15-04282), is another case where plaintiffs attempt to bind non-parties, including Internet services, although this case did not call out companies by name as in MovieTube.  TorrentFreak covered this case when it was filed, and CCIA filed an amicus brief in opposition to plaintiffs’ motion for a preliminary injunction.

And in yet another case where a plaintiff attempted to bind a party not before the court, Arista Records LLC v. Tkach [Grooveshark] (S.D.N.Y. Dkt. No. 15-3701), EFF filed non-party CloudFlare’s motion to modify the proposed preliminary injunction, and discussed the case’s problematic nature, and the “SOPA power” phenomenon generally.

So now what?

We’ll have to wait and see whether courts are willing to issue the kinds of sweeping orders that rightsholders have been seeking, and whether SOPA will in fact be resurrected.

Intellectual Property

The Internet enables the free exchange of ideas and content that, in turn, promote creativity, commerce, and innovation. However, a balanced approach to copyright, trademarks, and patents is critical to this creative and entrepreneurial spirit the Internet has fostered. Consequently, it is our belief that the intellectual property system should encourage innovation, while not impeding new business models and open-source developments.