December 05, 2011 3:00pm PT by Eriq Gardner
How Controversial Antipiracy Laws Could Be Enacted Even Without Congress (Analysis)
On December 15, the House of Representatives is scheduled to take up debate of the controversial "Stop Online Piracy Act" (SOPA). The antipiracy legislation has set off a firestorm in recent months thanks in large part to provisions that would allow the government to cut access to rogue foreign piracy websites and open up legal avenues by which third parties would be blocked from doing business with the offending sites. Critics fear the end of the Internet as we know it, and in reaction to cries of "censorship," the movie industry says it will at least tone down some of the language in the legislation.
But even if the bill doesn't pass, courts could eventually put the effects of the bill into force anyway with de facto blacklisting of websites deemed to be facilitating infringement. A couple of recent judicial decisions illustrate this potential.
Can search engines like Google be ordered to scrub a website deemed to be enabling copyright and trademark infringement? Can payment services like Visa or PayPal or ad-support businesses be enjoined from doing business with a website hosting illicit activities? Could domain registrars like GoDaddy be told to undercut these websites by changing access info?
In 2007, the 9th Circuit Court of Appeals appeared to foreclose these possibilities in denying an attempt by adult entertainment publisher Perfect 10 to hold Visa liable for infringing photographs found on websites using Visa's credit card services. The justices determined that Perfect 10 hadn't shown that Visa had induced or materially contributed to the infringements.
But now, some courts are entertaining motions to grant extraordinary injunctive relief against third parties in ex parte proceedings.
For example, in November, one judge in a case involving Chanel luxury products took action against hundreds of websites being used to sell knock-off handbags, wallets, shoes, and other items. Of particular note, the judge's order not only hit the websites themselves, but according to the Technology & Marketing Law Blog, also hit a host of tech companies that weren't parties to the action. GoDaddy was ordered to change registration info. And services like Google, Facebook, Bing, and Twitter were told to "de-index and/or remove [the domain names] from any search results page."
In other words, the websites were eradicated from ever having existed.
The same blog in a separate post noted another case involving a website, pharmatext.org, which had pointed users to allegedly infringing copies of textbooks published by Elsevier.
In January, a judge ordered two advertising networks to stop helping these websites generate ad revenue. The ad networks had to stop serving up advertisements and freeze money. Last week, after one of the ad networks, Chitika, complained, the judge reversed course because Chitika hadn't been shown to have requisite knowledge of the infringement. The judge, however, left open the possibility that Chitika could have liability upon a takedown/cut-off notice from Elsevier.
Had Elsevier sent a legal warning and Chikita continued to do business with pharmatext.org, tech legal expert Eric Goldman thinks the judge would have knocked down Chikita's objections to the ex parte injunction. Meaning, pharmatext.org would essentially have been blacklisted in much of the same manner as SOPA intends. "Rightsowners like Elsevier probably can get 90%+ of the benefit of SOPA Section 103 simply by sending cutoff notices to ad networks," writes Goldman in summing up the implications of the decision.
Even if Hollywood fails to bring lawmakers on board to pass the latest anti-piracy measures, it's likely we'll see alternative attempts by copyright holders to attain injunctive relief against search engines, social media sites, advertising networks, and domain registrars. If the MPAA is successful in its lawsuit against Hotfile, for instance, the next step might be wiping off the company from the face of digital Earth. The MPAA is already collecting data on its many affiliates. The future of copyright cases looks to be a dragnet.