Jan 18 | 2012


If you have tried to run a search on Google’s site today or if you have attempted to look something up on the Wikipedia website, then you already know about the blackout.  If you have turned on the news in the past couple of days, then you were prepared for the blackout.  But, if you have been in the “dark” about today, then I am going to explain why everyone is protesting.

Wikipedia, Google, YouTube and a number of other online entities are protesting two anti-piracy bills pending in Congress – SOPA (short for “Stop Online Piracy Act“) is pending in the House, H.R. 3261, and PIPA  (short for “Protect IP Act“) is pending in the Senate, S. 968.  Both pieces of legislation are designed to deal with the issue of rogue websites that sell pirated products, like movies and music.

While U.S. law enforcement has the authority to go after and shut down U.S. based pirates (under the Digital Millenium Copyright Act), they do not have the authority to go after foreign-based sites.  SOPA and PIPA, if passed, would allow the Justice Department to seek a court order requiring U.S. search engines, like Google, to scrub any rogue sites from their search results and also require credit card processors to stop processing payments to the pirates’ sites.  Also, the Justice Department would be able to stop U.S. companies from providing any assistance to the foreign pirates through advertising by requiring advertising networks to stop placing ads on the rogue sites or linking from ads that appear on the rogue sites.  Importantly, both bills would also allow content owners to take legal action seeking remedies (not damages) against websites that are allegedly hosting pirated content.

The White House opposes the bills, like Google, Wikipedia, Facebook and so many others.  Their concern, generally, is that the bills are too broad since the current language of SOPA, for example, would allow content owners to go after U.S. websites that are unknowingly hosting pirated content.  Google, Wikipedia and others feel that the bills would, in effect, stifle the Internet economy because these sites rely heavily on content uploaded by their users.  The stifling of free speech, not to mention the cost to administer the measures set forth in the bill, are big concerns of these online businesses.

Some would say that the opponents, like Google, Wikipedia and YouTube, are carelessly professing that anyone is entitled to free access to any online content at any time.  On the other hand, the proponents of the bills – like Hollywood and the Recording Industry – believe that these bills help to adapt the Constitution’s Copyright Clause, Article 1, Section 8, to current times:

To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries

These bills still have some hurdles to pass before becoming law, both in Congress and at the White House, so we have some time to argue about the value and mechanics of online businesses.  In the meantime, I look forward to getting Wikipedia back!

Posted by Lisa A. Dunner, Esq.