[vox] What's On the Blacklist? Three Sites That SOPA Could Put at Risk [EFF]

[Eric Rasmussen]

In the PDF see "SEC. 103. MARKET-BASED SYSTEM TO PROTECT U.S.
CUSTOMERS AND PREVENT U.S. FUNDING OF SITES DEDICATED TO THEFT OF U.S.
PROPERTY."

I have no specialized legal knowledge so I'm relying on the EFF
interpretation, but these points support their claim. Under
DEFINITIONS it says:

"Internet site is dedicated to theft of U.S. property if --

    (A) it is an Internet site, or a portion thereof, that is a
U.S.-directed site and is used by users within the United States; and

    (B) either—
      (i) the U.S.-directed site is primarily designed or operated for
the purpose of, has only limited purpose or use other than, or is
marketed by its operator or another acting in concert with that
operator for use in, offering goods or services in a manner that
engages in, enables, or facilitates—
         (I) a violation of section 501 of title 17, United States Code;"

In the event an Etsy user posts copyright-infringing materials (that's
Section 501 of title 17), Etsy meets the above requirements and under
the law may now be deemed an Internet site dedicated to theft of U.S.
property. The next part says a qualifying plaintiff may be defined as
"a holder of an intellectual property right harmed by the activities
described in paragraph (1) occurring on that Internet site or portion
thereof".

Continuing the previous made-up example, this means Acme can be a
qualifying plaintiff against Etsy if a portion of Etsy's site contains
any of Acme's copyrighted materials. In the section titled "DENYING
U.S. FINANCIAL SUPPORT DEDICATED TO THEFT OF U.S. PROPERTY" and under
"(1) PAYMENT NETWORK PROVIDERS", it says:

"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)."

The referenced paragraph 4 lists out the requirements of sending such
a letter, but it appears that any legal entity could send it on behalf
of the "holder of the intellectual property right". And that's where
the EFF example comes in. In our example, Acme doesn't have to go
through the government or notify Etsy. They can simply write a letter
like in EFF's example and send it straight to Etsy's payment provider
to have their payment processing suspended. That might not shut the
site down and Etsy may get it straightened out eventually, but that's
giving copyright holders a dangerous power.

And do we really want to legally define sites built on user content
like Facebook/Youtube/Twitter as being dedicated to the theft of U.S.
property? Certainly it's their responsibility already to remove
copyrighted materials if they are notified, but those sites can't
exist as they are today if they need to prevent copyrighted material
from ever showing up inadvertently or otherwise be faced with legal
action.

On Thu, Dec 1, 2011 at 12:31 PM, <timriley at appahost.com> wrote:
>
> > -------- Original Message --------
> > Subject: Re: [vox] What's On the Blacklist? Three Sites That SOPA Could
> > Put at Risk [EFF]
> > From: Eric Rasmussen <ericrasmussen at gmail.com>
> > Date: Thu, December 01, 2011 12:03 pm
> > To: "LUGOD's general discussion mailing list" <vox at lists.lugod.org>
> >
> >
> > I read that as EFF saying "we don't believe websites that let users post
> > potentially copyright infringing content should be subject to legal threat,
> > but under the new law they will be".
> >
> > If I start an Etsy shop reselling goods from Acme and use Acme's original
> > copyrighted product photos, Etsy could be at risk, even if they don't
> > reasonably have a way to automatically filter out that content. Etsy is
> > then put in a position where they have to put unreasonable controls on the
> > majority of non-copyright-infringing customers to prevent potential legal
> > action.
> >
> > Acme could always ask Etsy to remove the copyright-infringing content, but
> > with the new law they could go straight to the payment processor and
> > prevent Etsy from collecting funds they might need to continue running,
> > regardless of the eventual outcome of the investigation.
>
> This is a better narrative than the website's.
>
> >
> > If I'm understanding it correctly, this means that any of us that one day
> > start a site where users can freely post photos, text (copyrighted
> > lyrics/slogans/etc.) would also be at risk.
>
> But I'm not seeing *any* cause-effect relationship with the text
> of the bill. And I surely don't see any payment clause in the bill.
>
> Here is the bill:
> http://www.gpo.gov/fdsys/pkg/BILLS-112hr3261ih/pdf/BILLS-112hr3261ih.pdf
>
> It's 78 pages long, and it could have poison pills included. I
> have enough trust in our legal system to believe that the
> rule of law overrides the mores of judges. That's why
> we have juries. The words contained in our laws have
> meaning. What words in this law will lead to unintended
> consequences?
>
> I'm starting to recognize the issue's dichotomy. Should a computer
> hosting service be responsible for copyright infringements
> of it's voluminous posters? Well, Wikipedia surely takes
> the effort to clean house.
>
> I'm also starting to recognize the stakeholders. Do sites hosting
> pirated music and movies sell Google advertisements?
>
> <snip>
>
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