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How The Latest Copyright Fight Could Affect Online Politicking

BY Sarah Lai Stirland | Wednesday, November 16 2011

Back in 2008, Republican presidential contender John McCain’s campaign faced the humiliating situation of having its YouTube videos continuously yanked because of alleged copyright violations from music labels and broadcasters from whom the campaign had not negotiated rights.

The campaign claimed “fair use,” because its videos had only used excerpts of popular musical soundtracks, and broadcasts, and went so far as to ask YouTube to change its automated take-down procedures to accommodate these kinds of situations. YouTube’s lawyer replied at the time that the company received far too many of these kinds of notices to be able to manually evaluate the legitimacy of each claim.

But at least the complaints were limited to individual pieces of content. Had a proposed piece of copyright and trademark legislation been law at the time, the Warner Music Group or any of the broadcasters could have asked for a court order to demand that ad networks and payment processors stop doing business with YouTube by alleging that it's "dedicated" to infringing upon copyrights, says the Center for Democracy and Technology's Senior Policy Counsel David Sohn.

The existing take-down procedure is a well established legal regime that has enabled Web 2.0 platforms such as YouTube to flourish and become integral to the political process in the United States. The regime also reflects the tendency in this country, fostered by the First Amendment, to avoid most forms of prior restraint.

But a bill wending its way through Congress backed by the entertainment industry and other businesses suffering from the sale of counterfeit goods online has digital platform owners and the wider Internet up in arms because it threatens to overturn this tradition.

Under the Stop Online Piracy Act, which underwent a much-maligned hearing on Wednesday at the House Judiciary Committee, copyright holders would, among other things, be able to to demand payment processors and ad networks stop doing business with any web site that is "dedicated to infringement" — a vague definition, and a move reminiscent of the role Paypal played in the Wikileaks saga after its release last year of leaked State Department cables.

Under the definition in the House bill, a web site could be deemed by a court to be “dedicated” to copyright infringement and violating trademark law if it can be demonstrated that it’s not doing enough to prevent these things from happening on its site.

Critics say that that is an impossibly vague standard — and one that could be abused to interfere with political activity online. It also shifts the balance of power into the hands of copyright holders, and it has inspired critics such as the author and journalist Rebecca MacKinnon to compare this proposed policyto China’s online censorship policies.

“Imagine a political forum that’s dedicated to supporting a particular candidate, or a particular ballot measure, and users are posting lots of stuff, but some users that post some stuff that’s infringing, and people who are on the other side of the issue, or are in support of another candidate, would like to make this forum disappear,” posits the CDT's Sohn.

“What could they do? They could allege that the site hasn’t done enough to stop infringement, and that the site could be considered dedicated to theft, and try to get all the credit card companies that are processing the political donations that are keeping the site up, get that all cut off. So in a forum with user-generated content that takes a particular political view, and someone for political reasons would like it to disappear, they could certainly make copyright allegations under this process and try to get that site choked off.”

The people complaining would presumably have to be the copyright owners. Nevertheless, the primary concern about the legislation, say critics such as Sohn, is that platform providers won’t be guaranteed the safe harbor and legal certainty they have under current take-down procedures. And this legislation eviscerates a whole body of existing case law concerning platform providers’ responsibilities for their users’ actions dating to entertainment industry litigation brought against the Grokster file-sharing network — a case that went all the way to the Supreme Court.

MacKinnon argues in her New York Times op-ed piece that the effective erasure of these clear guidelines by this legislation could put the platform providers in a difficult position of having to constantly monitor their networks for potentially infringing content, in a sense, acting as censors.

The legislation has many other elements to it, and noted First Amendment attorney Floyd Abrams has argued in an extensive 14-page letter to Rep. Lamar-Smith, (R-Texas) the chairman of the House Judiciary Committee, and its Ranking Member Rep. John Conyers, (D-Mich.) that the proposed legal procedures would be fair and not overreaching.

For his part, Sohn said that the legislation could be fixed by offering a narrower definition of what a site dedicated to infringement is.

“I would argue that under the current definitions it’s not narrowly focused at all. It is not limited to people who are willfully infringing copyright or anything close,” he said.