SOPA backers seek to restrict online rights again — but this time outside the law

The next threat to online rights may not be posed by a piece of legislation, but rather from a series of tacit agreements worked out between content holders, payment processors, and service providers.

In a piece penned for Slate, Marvin Ammori claims the same groups that lobbied for the creation of the controversial 2011 Stop Online Piracy Act (H.R. 3261) are at it again — but this time they are using a route that doesn’t involve Congress at all.

Why SOPA was shut down

The furor over SOPA stemmed from the difference between SOPA’s professed purpose and what it could actually be used to accomplish. Its ostensible goal was to make it tougher for websites not located in the United States to sell counterfeit copyrighted merchandise: fake designer clothing, knockoff prescription drugs, and bootlegged copies of movies or music.

Few people objected to the idea of stopping the sales of counterfeit goods. But as worded, SOPA could be used to block or shut down sites under the guise of copyright infringement, with little in the way of oversight or due process to protect the accused. Backers of the bill claimed that worries about end runs around due process were overblown, but InfoWorld’s Bill Snyder was skeptical about their claims of how much is lost each year to piracy and how such claims were used to justify what he saw as broad, overreaching legislation.

Protests against SOPA (and its sister legislation, PIPA) were vigorous and widespread enough — including voluntary blackouts of major sites like Reddit — that passage of the bill was stalled indefinitely. But Ammori, who was one of Google’s legal representatives during its campaign against SOPA in 2011, has observed several signs that “copyright lobbyists,” as he calls them, are preparing to try again.

The new boss, same as the old boss

First up, says Ammori, is a House Judiciary Committee hearing on “Section 512 of Title 17,” also known as the Digital Millennium Copyright Act (DMCA). SOPA was seen as an end run around the DMCA, which made it easier for sites to operate without worry about being held liable for users’ actions, and for copyright owners to have infringing material removed without excessive litigation. The point of the hearing: to have law professors, copyright holders, and legal counsel speak their minds about both sides of the issue.

Committee Chairman Bob Goodlate called attention to two issues that have arisen since passage of the DMCA. One is the whack-a-mole game, where infringing content is taken down only to immediately resurface somewhere else; the other is “the quality of the notices and the impact upon other important legal doctrines such as fair use and the First Amendment.”

The committee meeting is not by itself hugely ominous, but Ammori indicates that there’s pressure on the part of copyright holders to tilt things in their direction.

Ammori also points out that the U.S. Patent and Trademark Office “has scheduled a ‘multistakeholder forum’ [on March 20] to discuss ‘improving the operation of the DMCA notice and takedown system’ for next month: another chance to build some voluntary consensus.”

The consensus Ammori refers to is one where copyright holders build alliances with owners of financial or advertising infrastructure as a way to “pressure the tech companies they want to squeeze.” Ammori cites an anecdote related to him by Andrew Bridges, of law firm Fenwick & West:

… in which payment processors or advertisers cut off a tech company — merely because a large copyright holder complained, without a single legal order, to the payments company or advertiser.

Sometimes, the copyright holder was in the middle of litigation with his client, and the ‘voluntary agreement’ with the advertiser or payment company was used for extra leverage. Other times, he came to believe that the copyright holder just didn’t like the industry his client was in — cloud storage, say, or virtual private networking.

Above and outside the law?

Ammori believes these kinds of agreements are bad news, in big part because they operate outside of the realm of legal due process and exclude the participation of people directly affected by such decisions. “These agreements might be ‘voluntary’ for the companies involved,” he writes, “but they’re arranged marriages for the rest of us.”

Many of the criticisms of SOPA were of the same stripe. Despite multiple revisions in the wording of the bill to refocus its attention on sites that were clearly designed to facilitate infringement, worry persisted that the definition remained too broad. Worries also abounded that SOPA would give the government a free hand to block access to any site deemed to be infringing, to cut off support from a payment network for any such site, and to provide legal indemnity to anyone who suspends such services to supposedly infringing sites.

There’s little argument that piracy is problematic and that creative content producers and copyright holders are entitled to the fruits of their labor. What’s thornier, though, is finding a good balance between the rights of all involved — something Ammori is worried will be even more difficult to find if once the process is relegated to a series of back-room handshake deals.

This story, “SOPA backers seek to restrict online rights again — but this time outside the law,” was originally published at InfoWorld.com. Get the first word on what the important tech news really means with the InfoWorld Tech Watch blog. For the latest developments in business technology news, follow InfoWorld.com on Twitter.