July 5, 2012

 The role of the intermediary

The key rationale behind SOPA is that intermediaries, such as internet service providers and payment processors, are often best placed to stop infringement. This is particularly so when websites that make available infringing content can be based anywhere in the world.

To operate, infringing sites need access through the internet, availability through search engines and revenue, whether generated from advertising and/or subscriptions. Together, these elements are the infringing site’s lifeblood. SOPA aimed to tackle infringing sites by undermining their access to these key resources.

To be able to require intermediaries to take action, the legislation provided that law enforcement and rightsholders would first need to obtain an order against the “pirate site”. A pirate site is defined as one whose operator commits or facilitates copyright infringement under US law. SOPA doesn’t affect the extensive liability exemptions (or “safe harbours”) established by the Digital Millennium Copyright Act. YouTube has previously established that it is within the “hosting” safe harbour – a US court found that a service provider must have “knowledge of specific and identifiable infringements of particular individual items” to lose the safe-harbour protection. “Mere knowledge of prevalence of such activity in general is not enough. ”This places a limitation on the scope of SOPA – YouTube, eBay and other sites that promptly remove pirated material once notified and that are not focused on infringement would not be classified as pirate sites. Contrary to the rhetoric, there was little chance that SOPA would apply to anything but the egregious infringer.

Position in Europe

European law already recognises that intermediaries are often best placed to bring copyright infringement to an end. While intermediaries can be protected from liability in certain circumstances, they can also play a vital role in online law enforcement. Rightsholders may apply for an order requiring an intermediary whose services are used to infringe copyright to take steps to prevent that infringement.

In the UK, BT was recently ordered to block access to the Newzbin2 website. This order was founded upon European law. The court weighed the competing rights to property and free speech and concluded that the order was proportionate: “It is necessary and appropriate to protect the Article 1 First Protocol rights of the Studios and other copyright owners. Those interests clearly outweigh the Article 10 rights of the users of Newzbin2, and even more clearly outweigh the Article 10 rights of the operators of Newzbin2.”

BT and (pursuant to a further order) Sky have applied the same system used by them to prevent access to indecent images of children to prevent access toNewzbin2. In both cases, all that has happened is that infringement of copyright by Newzbin2 has been curtailed. The internet has not been “broken”, as some have claimed might be the case if SOPA were introduced.

SOPA is a politically difficult issue. But, when the rhetoric is put aside, it should be seen as proportionate legislation aimed at tackling a very specific and damaging problem.