By Mark A Gregory, RMIT University
Battle lines have been drawn in the US between proponents of the Stop Online Piracy Act (SOPA), currently being debated, and those who oppose any regulation of the internet.
On one side are organisations that will benefit by copyright being applied to the internet, including the Motion Picture Association of America, the American Federation of Musicians, the Directors Guild of America, the Screen Actors Guild and other copyright holders. They are joined by drug companies keen to block online pharmacies from utilising copyright material without permission as a means of generating cheap online sales from outside the US.
On the other side are a broad range of organisations including leading internet companies – Google, AOL, eBay, Facebook, Twitter and many others. An open letter was sent to Congress last week outlining their concerns with SOPA.
Also in support of the anti-SOPA stance are civil liberties groups – and others such as the Electronic Frontiers Foundation, which posted an overview of SOPA.
Earlier this year, Australian internet service providers (ISPs) – including Telstra, Optus and Primus Telecom – implemented internet filters to block Interpol’s list of child-abuse websites.
In England, the High Court ordered British Telecom to block access to a members-only website called NewzBin2 that offers links to pirated films.
Critics of SOPA employ a common image – SOPA as a “bull in a china shop” – and emphasise their preferred approach is a voluntary code of conduct that includes identification of copyright breaches and voluntary removal of the copyright material upon receipt of a copyright breach notification.
This is similar to the argument used in Australia against the proposed mandatory internet filter to be used to block child-abuse websites. In Australia many organisations argued a mandatory internet filter would lead to government censorship of the internet.
It has been suggested, by opponents, that SOPA would have worldwide consequences because US consumers using websites while physically outside the US would bring that website within US jurisdiction. But this concern is of little consequence as there is already international jurisdictional precedence.
In 2000, Joseph Gutnick successfully sued Dow Jones and Company in the Supreme Court of Victoria. This court case was of considerable note because the offending article was placed on a Dow Jones website.
In defence, Dow Jones claimed the article was published in the US and therefore any defamation action should take place in the US.
The Supreme Court of Victoria did not agree with the Defence, deciding the internet is an online publishing network and under common law defamatory matter is published in each place in which it is read, seen or heard.
In 2002, the Australian High Court upheld the decision after an appeal by Dow Jones.
Arguing the internet should be treated differently to other forms of media is not sustainable in the long term.
Google claims to be in favour of a watered down version of SOPA. Yet Google has a poor track record that will count against any arguments put by the company. In August, Google agreed to pay US$500 million to settle a US Department of Justice case because it let online pharmacies in Canada use Google’s Adwords system to advertise prescription drugs to US consumers.
It is also argued SOPA would force many organisations to move websites and cloud computing facilities outside the US in an attempt to limit any effect SOPA would have on their worldwide operations.
Censorship is a common claim which is strongly denied by the lead sponsor of SOPA, Lamar Smith, a Texas Republican. Smith wrote: “The First Amendment is not a cover for engaging in criminal activity”.
“The infringing websites in question have ample opportunity to participate in judicial proceedings, if they choose to do so. The bill’s actions are directed toward websites that are trafficking in illegal goods or copyrighted material”.
Change is needed.
The internet has become a haven for international crime organisations. Scams, SPAM, viruses, malware, hacking, intellectual property loss and identity theft are now common occurrences online. Innocent people are having their lives ruined and governments must act.
A growth in internet-related legislation to protect copyright holders is likely in the next five years. Governments will bring legislation into line with recent court cases where copyright holders have successfully argued copyright protection extends to the internet.
The future of entertainment is likely to depend on government legislation reducing rampant online copyright breaches.
Copyright holders have for several years taken court action against individuals who download copyright material without permission.
Better regulation of the internet will reduce the need for copyright holders to take legal action against individual consumers, allowing websites containing illegal copyright material to be targeted, wherever they are hosted in the world.
The internet is not special, and should not receive special treatment.
Mark A Gregory does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.