Two Flaws in the SOPA

This is the second post in a series looking at the Stop Online Piracy Act. In Part I of this series I looked at Section 102 and concluded that it was largely unobjectionable. Section 102 essentially provides the DOJ with supplemental provisional remedies it can use against sites that are violating U.S. criminal laws but are beyond the effective reach of U.S. courts. There may still be valid concerns with Section 102, and I plan to address a couple in a later post, but it doesn’t seem to pose any special danger to the Internet or existing copyright law.

Then there’s Section 103. The idea behind Section 103 appears to be to provide copyright owners in a civil case with similar provisional remedies as in Section 102, following some sort of notice-and-takedown scheme reminiscent of Section 512 of the DMCA. And if all Section 103 targeted was foreign “rogue sites” as well, then there would be much less cause for concern. But Section 103 appears to go well beyond that. In contrast to Section 102, there’s nothing in the definition of the sites targeted under Section 103 — sites “dedicated to theft of U.S. property” — that limits those sites to sites outside the jurisdiction of United States courts. In fact, Section 103 seems weirdly out of place next to the more limited Section 102, and is out of sync with how defenders of the bill are describing it, which is as a narrow provision designed to combat foreign “rogue sites.” Section 103 is weird in a number of ways that suggest that it is the result of a sort of pastiche compromise between a narrow provision targeting rogue sites in civil suits and an all-out amendment of Section 512 of the Copyright Act. There’s two aspects of Section 103 in particular that I find little short of bizarre: (1) it sets up a notice-and-takedown regime that, as far as I can determine, is completely voluntary, but it uses the word “shall” in describing what recipients must do; and (2) it refers to “a cause of action under this section” without ever describing what that cause of action is.

These are the two aspects of the bill that have opponents most alarmed, but I think critics have been too quick in their reading of the bill’s language. The provisions are troubling, but in my view that’s because Section 103 is opaque, counter-intuitive, and prone to misinterpretation. My guess is that there is some sort of interesting lobbying backstory that explains Section 103’s current form. A quick aside: Copyright legislation is often portrayed as though it was drafted by a unified group of Snidely Whiplashes sitting around a table, twirling their mustaches and agreeing on everything. But the politics on each “side” of copyright debates are actually pretty fractious. It’s worse than just looking at something drafted by committee; the text of copyright legislation is drafted by committees of committees, in an iterative process. Not only are the legislators obviously organized into various committees, but the interest groups appearing before them are for the most part committees rather than single entities: for example, trade groups. Each member of a committee may have their own particular interest in getting the bill to say or do something in a particular way. Even large companies like Google can be committee-like, with various interests within the company that need to be satisfied. Legislation drafted under such circumstances tends to be ugly. My prediction for SOPA: no matter what changes are made to it, the result will be that it will get even uglier, and harder to interpret, than it is now.

But on to the show. First, there’s the notice-and-takedown regime that Section 103 appears to set up. For example, Section 103(b)(1) provides that:

a payment network provider shall take technically feasible and reasonable measures, as expeditiously as possible, but in any case within 5 days after delivery of a notification under paragraph (4), that are designed to prevent, prohibit, or suspend its service from completing payment transactions involving customers located within the United States and the Internet site, or portion thereof, that is specified in the notification under paragraph (4).

This has the appearance of a mandatory obligation: the payment network provider (e.g., Visa) “shall” take certain measures in response to a notification in the proper form.

One thing that I do when reading such language is ask, “shall — or else what? What’s the penalty for noncompliance?” And that’s the first of our mysteries concerning Section 103. The answer SOPA gives is essentially, “or else nothing.” There does not seem to be any enforcement hook to actually require the recipients of such letters comply with them. Contrast that with the existing notice-and-takedown regime, Section 512. Under Section 512(c) and (d), an ISP receiving a takedown notice in the proper form must comply with it. Or else what? Or else they lose immunity from whatever copyright infringement liability they would have had in the absence of Section 512. So an ISP that wants to keep that immunity needs to “expeditiously remove or disable access to” the identified material. Note that that’s the only sanction; an ISP can’t be fined or otherwise punished for failing to comply with a takedown notice, except for whatever copyright infringement liability it might have, because Section 512 does not provide for such additional penalties.

You’ll look in vain for a provision in SOPA that says what happens if a payment network provider or advertising service fails to comply with or respond to one of those takedown notices. They don’t lose any immunity or gain any copyright infringement liability — Section 2(a)(2) of the bill expressly states that “[n]othing in [Section 103] shall be construed to enlarge or diminish liability, including vicarious or contributory liability, for any cause of action available under title 17 . . . , including any limitations on liability under such title.” And there’s no other provision stating that any private party can sue for or any court can sanction a failure to respond. The closest the bill comes is Section 103(c)(1):

if a payment network provider fails to comply with subsection (b)(1), or an Internet advertising service fails to comply with subsection (b)(2), pursuant to a notification under subsection (b)(4) in the absence of such a counter notification, a qualifying plaintiff may commence an in personam action against—

(A) a registrant of a domain name used by the Internet site, or portion thereof, that is subject to the notification under subsection (b)(4); or

B) an owner or operator of the Internet site or portion thereof.

So if a payment network provider fails to respond, then the copyright owner can sue the owner of the allegedly infringing website! (That’s a bit odd; the copyright owner could sue the website even without sending one of those notices. I’ll take this bit up below.) There’s no provision for suit against the payment network provider.

And, in fact, it looks like this is not simply some sort of oversight. Section 104 provides for immunity for payment network providers and advertising services

for taking any action described in . . . section 103(b) with respect to an Internet site, or otherwise voluntarily blocking access to or ending financial affiliation with an Internet site, in the reasonable belief that—

(1) the Internet site is a foreign infringing site or is an Internet site dedicated to theft of U.S. property; and

(2) the action is consistent with the entity’s terms of service or other contractual rights.

(Emphasis added.) This makes it clear: compliance with Section 103(b) is voluntary (if it wasn’t, similar actions would not be “otherwise voluntar[y]). It’s great that Section 104 makes this clear, but it would be better, in order to avoid confusion, if Section 102(b) eliminated the word “shall” and the associated deadlines for response everywhere they appear.

What would be the point of a notice-and-takedown regime that’s completely voluntary? I think the problem is in viewing Section 103(b) as a notice-and-takedown regime. It’s not. The way it’s written now, the notices in Section 103(b)(4) do not give the copyright owner any additional rights or enforcement ability; they are a prerequisite for a plaintiff to obtain the supplemental remedies provided in Section 103(c). That is, in order to get those remedies, the copyright owner must serve prior notice on the intermediaries and wait at least five days. Everything else in Section 103 — the words “shall,” the requirement for a response to the court within five days, etc. — is surplusage, not backed by any legal obligation.

This leads to the second strange aspect of Section 103. I’ve been describing the opportunity to seek a preliminary injunction, which can then be served on designated intermediaries, as a supplemental form of provisional relief, since that’s what it appears to me to be. A TRO or preliminary injunction is only intended to preserve the status quo until a final decision on the merits can be rendered; it is not intended to afford final relief between the parties on its own (that’s a permanent injunction). So the remedies provided in Section 103(c), and also those in Section 102(b), must be provisional remedies in aid of some other cause of action. What’s the cause of action in which you can seek these remedies?

One natural guess might be a copyright infringement action under 17 U.S.C. § 501, or a trademark infringement action under 15 U.S.C. § 1114, or some other existing IP cause of action. But Section 103 repeatedly refers to “an action under this section” as the one in which the provisional remedies are available. What cause of action is that? Here’s the thing: the SOPA bill doesn’t say. There is no cause of action defined under Section 103. Sure, there’s a definition of “Internet site dedicated to theft of U.S. property.” One thing that has IP scholars particularly upset is that the definition of “Internet site dedicated to theft of U.S. property” does not track the existing standards for copyright or trademark infringement liability; and if copyright and trademark owners can sue “Internet sites dedicated to theft of U.S. property,” then that effectively expands who can be held liable for infringement. But nothing in SOPA actually says that “Internet sites dedicated to theft of U.S. property” can be sued; although the phrase sounds pretty bad, nothing in SOPA says that it is illegal, or gives rise to any liability, to operate such a site. Contrast that with 17 U.S.C. § 501, which establishes an action for copyright infringement. First, § 501(a) defines infringement. Then, § 501(b) provides that “[t]he legal or beneficial owner of an exclusive right under a copyright is entitled . . . to institute an action for any infringement of that particular right committed while he or she is the owner of it.” (Emphasis added.)

SOPA § 103 is missing that second bit. Let’s look again at how Section 103(c)(1) refers to the various actions:

a qualifying plaintiff may commence an in personam action against–

(A) a registrant of a domain name used by the Internet site, or portion thereof, that is subject to the notification under subsection (b)(4); or

B) an owner or operator of the Internet site or portion thereof.

There’s nothing in this stating what the basis for the in personam action is. A “qualifying plaintiff” is simply a plaintiff whose IP rights have been harmed by the activities occurring on the site — but being harmed by activities is not the same as having a cause of action with respect to such activities. And the notification in (b)(4) is a notification that “the Internet site, or portion thereof, is dedicated to theft of U.S. property.” That just brings us back to the definition of “Internet site dedicated to theft of U.S. property,” which does not itself establish any cause of action either, it just defines a term. Section 103(c)(2) provides for an in rem action in cases where the persons behind the site or its domain name cannot be found, but still does not state the basis for the action.

I suspect what explains all this is that someone is viewing the procedure spelled out in Section 103 as not preliminary, but final. That is, the whole point of Section 103 is to give copyright and trademark owners the provisional relief detailed in subsections (b) and (c) — the notices for voluntary takedowns, followed by court orders to intermediaries such as credit card providers and third-party advertisers — in the apparent expectation that those preliminary orders will solve the problem (whatever the problem is, since the provision seems to go beyond foreign rogue sites) and there won’t really be a need for further proceedings. Therefore, there’s no need to identify any particular cause of action that those remedies would be in support of. But that’s just goofy. You can’t have preliminary remedies that are preliminary to nothing. And the plaintiff has to plead something in the complaint, and request some sort of final relief. Which is what? Section 103 never states what the final relief in the cause of actions it appears to be creating is. The likely way this bill will get misread, I suspect, if it becomes law is the same way critics have been reading it: that it contains a hidden provision making the owners or operators of “Internet sites dedicated to theft of U.S. property” liable to “qualifying plaintiffs” for the harm caused thereby. I think it’s significant that the bill does not in fact say that that is what it is doing, however.

A better way to read SOPA, in my opinion, is that the actions referred to are actions for copyright or trademark infringement as defined by existing law. In authorizing certain plaintiffs to bring an action “under this section,” SOPA authorizes those plaintiffs to bring a copyright or trademark infringement action in which they can seek special provisional remedies. Section 103 would therefore apply only to a subset of copyright or trademark infringement actions, actions where the defendants own or operate something that falls into the category of “Internet sites dedicated to theft of U.S. property.” Sites in that bucket would be subject to the extraordinary provisional remedies provided in Section 103(c) (after first providing the required notice in Section 103(b) and waiting the required five days).

That still leaves the problem that all of this seems mistargeted, given that “Internet sites dedicated to theft of U.S. property” could easily include U.S. sites within a U.S. court’s jurisdiction, which eliminates the policy rationale for such remedies in the first place. Why would you need to target a site’s advertisers or credit card providers if you could get an enforceable order from a U.S. court, backed by contempt sanctions, to stop the alleged infringement? It’s not clear that there is any need for such remedies; the definition of “Internet site dedicated to theft of U.S. property” should be narrowed to track the definition of “foreign infringing site” in Section 102. To that extent, I agree with those who are calling Section 103 in its current form dangerously overbroad.

[Cross-posted at the Marquette University Law Faculty Blog.]

[Related post: Son of SOPA.]