July 13, 2014

DeMaura and Segal: All Candidates Should Be Concerned About SOPA

During the waning days of the 2008 presidential race, there was an important but overlooked occurrence on the John McCain campaign. In mid-October, the McCain campaign awoke to find that its Web videos and online advertisements were disappearing from its YouTube page.

The culprit turned out to be a major television network claiming they owned portions of the videos and that posting the clips was a violation of copyright law. Even though the campaign, and many others in the online community, believed the content to be privileged under the “Fair Use Doctrine,” the videos were pulled down.

Fast-forward more than three years, and a new piece of legislation is making its way through Congress that would make it easier for online campaign content and websites to be taken down. Even more concerning, if passed, this bill would allow opposing campaigns or campaign committees — not just the original content provider — to pull down websites harboring “infringing content.”

The legislation that campaigns across the country should be concerned about is the Stop Online Piracy Act. The overarching goal of SOPA is a good one: Take aggressive steps to curb online copyright infringement. The problem is that the bill would create heavy-handed regulations that would blacklist legitimate websites without adequately addressing online piracy.

Here’s a plausible campaign scenario under SOPA. Imagine you are running for Congress in a competitive House district. You give a strong interview to a local morning news show and your campaign posts the clip on your website. When your opponent’s campaign sees the video, it decides to play hardball and sends a notice to your Internet service provider alerting them to what it deems “infringing content.” It doesn’t matter if the content is actually pirated. The ISP has five days to pull down your website and the offending clip or be sued. If you don’t take the video down, even if you believe that the content is protected under fair use, your website goes dark.

The ability of any entity to file an infringement notice is one of SOPA’s biggest problems. It creates an unprecedented “private right of action” that would allow a private party, without any involvement by a court, to effectively shut down a website. For a campaign, this would mean shouldering legal responsibility for all user-generated posts. As more issue-based and political campaigns utilize social media to spread their message and engage supporters, a site could be targeted not only for the campaign’s own posts but also for well-meaning comments from supporters.

Another damaging aspect of SOPA is the increased liability the bill would place on ISPs and search engines. SOPA effectively guts the Digital Millennium Copyright Act’s safe harbors — one of the big reasons companies such as Facebook, YouTube and Twitter weren’t crushed in their early days by harassing lawsuits. Without these safe harbors, the risk of frivolous lawsuits greatly increases, which makes it more expensive for startups to get off the ground and decreases the chances of investment and future job growth.

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