The End of the Internet?

Tension between the interests of copyright holders and the accessibility and openness of the Internet is not a new phenomenon – Napster anyone? However, a potentially game-changing new development in online intellectual property and copyright law is currently making its way through the United Stages legislature. The Stop Online Piracy Act, or SOPA, was introduced in the U.S. House of Representatives in October of this year. The Act was given hearing in front of the House Judiciary Committee on November 16, 2011; its counterpart in the Senate, the PROTECT-IP Act, was introduced in May of this year and has since been passed.

As stated in its preamble, the legislation is designed to “promote prosperity, creativity, entrepreneurship, and innovation by combating the theft of U.S. property, and for other purposes.” To achieve these goals, SOPA would allow the Department of Justice and Attorney General the power to impose liability on any website, including those outside of U.S. jurisdiction, that infringe or enable the infringement of copyrights in the United States.

The Act is ostensibly designed to support and protect content creators and copyright holders by providing new avenues of enforcement against those that use the Internet to profit from infringement. However, the implications of this Act if passed would be wide and far-reaching; many commentators and critics are arguing that it would “break the internet”. This aggressive charge is rooted in the notion that the bill would effectively require any website that links to, receives advertisements from, or enables payment to a site found to (or accused of) engage in or profit from infringement.

The business models of tech titans like Google, Facebook, and Paypal are fundamentally rooted in enabling the sharing of information between producers and consumers. The Act’s implications could require that these sites take measures to remove any sites accused of infringement from their listings, or linking in any way to those sites. It could, in effect, impose a legal duty on a company like Twitter to respond to a post by a user that contained a link to a website that infringed copyright – by hosting an unattributed image, for example. Ultimately, any site that hosts user-generated content could be similarly liable. In addition to the significant technical issues that inhibit the enforceability of the bill’s provisions, some tech companies are understandably concerned about the potential impact on their core business.

In addition to these concerns, there are significant jurisdictional issues inherent in the bill that should be of concern to Canadian Internet providers and users. University of Ottawa law professor Michael Geist, a keen observer of issues relating to technology and copyright law, wrote in a recent article that the bill would extend a ‘long arm’ into international commerce and internet activity. Of particular concern is the notion that:

“…the bill grants the U.S. ‘in rem’ jurisdiction over any website that does not have a domestic [i.e. American] jurisdictional connection. For those sites, the U.S. grants jurisdiction over the property of the site and opens the door to court orders requiring Internet providers to block the site and Internet search engines to stop linking to it.”

In effect, the bill could render US copyright law paramount over Canadian and other international law regarding the legitimacy of certain sites. Particular concerns have been raised in relation to the bill’s potential impact on Canadian online resellers of prescription drugs, which while legal and accredited as pharmacies in Canada, could be shut down in the US under SOPA.

In sum, SOPA has the potential to drastically reconfigure the way the Internet, which, by its nature, frustrates most attempts to assert jurisdictional control. It is a rare person that doesn’t rely on the online sharing of information across borders for commercial, educational or recreational purposes. Canadian innovation and technology law observers should take a keen interest in the developments of this proposed law. For those that are interested, the bill can be read in full here.