On Wednesday, January 18, 2012, thousands of internet companies including Google and Wikipedia protested against the Stop Online Piracy Act (SOPA) proposed by the House and its counterpart in the Senate, the Protect IP Act (PIPA). For example, Wikipedia blacked out its website while Google collected over 7 million signatures for its anti SOPA and PIPA petition. Since the high profile protests, key House and Senate supporters have withdrawn their support, questioning the viability of both bills.

SOPA and PIPA are supported by original content providers such as the movie and music industry. The bills target “rogue” overseas internet sites trafficking copyright material and counterfeit goods. One example is the streaming of movies or television shows for free without the permission of the copyright holder thereby violating the intellectual property held by the music and movie industry. This type of piracy has been ongoing for years since the days of Napster, but avoid U.S. prosecution because the rogue sites are located outside of the country where U.S. laws cannot reach them. The goal of the proposed bills therefore is to starve the rogue sites by barring advertisers, payment facilities, and internet service providers from conducting business with these sites. Harsher criminal penalties are also proposed with a maximum of five years in prison for anyone involved with unauthorized streaming of copyright material.

While both sides agree that rogue sites violating U.S. laws should be stopped, the bills’ detractors argue that SOPA and PIPA also promote censorship and have the unintended consequences of implicating legitimate internet companies within its broad provisions. One particular concern was that user generated websites like YouTube, may be held liable under SOPA and PIPA for the content that its users upload on the site. Other concerns involve implications of an entire website even when only a minor portion link to the infringing content. Critics of SOPA and PIPA also claim that the bills weaken the safe harbor protections available under the DCMA by shifting the burden to the website owner to actively monitor its content for infringing activity.

Alternative bills like the Online Protection and Enforcement of Digital Trade Act (OPEN) have been proposed. OPEN is supported by the internet companies because it offers more protection to those sites accused of hosting infringing content. OPEN also allows copyright holders to bring suits against the accused infringers before the International Trade Commission (ITC). Detractors of this bill argue that OPEN fails to offer sufficient protection. It remains to be seen whether a consensus will be reached in the upcoming weeks.

 Lisa H. Wang is an Associate in the Gibbons Intellectual Property Department.