STOP SOPA
Three years ago, while enrolled in Elizabeth Stark’s “Intellectual Property in the Digital Age” seminar at Yale, I wrote a blog post on the chilling effects spurred by the Digital Millennium Copyright Act’s (DMCA) “Safe Harbor” provision (see below).
As an example, I showed how the Safe Harbor provision created incentives for eBay to remove legitimate, legal items to shield the site from legal liability.
With SOPA, judges would be allowed to immediately shut down any site with allegedly infringing content. If a copyright holder claims the just a single infringing video is on Youtube or an fake Louis Vuitton bag is on eBay, these entire sites could be closed. The standards imposed on websites with user-generated content and peer-to-peer would become astronomically high, and regular users will be stifled as the sites remain in perpetual states of fear.
Even though there are many defenses against copyright infringement (e.g. fair use), one could imagine how a site like Youtube could be crippled, as it might need to manually review every video or user filtering technology that blocks any submission with even a second of copyrighted music playing in the background. eBay and Amazon might need to conduct lengthy reviews before allowing allowing users to list items for sale, and it is difficult to imagine how they could assess items remotely (back to the Louis Vuitton example, it is hard enough for people to distinguish authentic and counterfeit goods in person, let alone in a picture). It is hard to imagine how sites like Youtube and eBay could continue to exist in their current forms.
The internet has changed the way in which we consume and share information and the way in which we buy and sell goods. While platforms have the potential to be misused and abused, we ought not stifle innovation, progress, creativity and commerce in our quest to control these issues. The passage of SOPA would blatantly shift the laws in favor of large corporations, and hurt the majority of Americans.
Ironically, the Copyright Clause, (Article I, Section 8, Clause 8 of the Constitution) was designed to “promote the Progress of Science and useful Arts.” SOPA, which Congress would pass under the authority granted by this clause, would result in the opposite.
February 17, 2009 — Brian L
Earlier today, I was reading a post on Professor Lessig’s blog about a new law in New Zealand that compels ISPs to terminate someone’s internet service if they are simply accused of copyright infringement. Though I have long followed the issues surrounding warrantless wiretapping and other national security-related breaches of civil liberties, I took solace in the fact that we live in a country where our innocence is presumed until we are otherwise proven guilty. Or so I thought…
Just as online video services like Youtube have developed a notification mechanism to be eligible for the Safe Harbor protection from secondary copyright infringement charges, eBay has been using a similar procedure since 1997—a year before the DMCA was enacted.
eBay’s Verified Rights Owner, or VeRO, program allows copyrights holders to notify eBay that an item or listing infringes on a copyright they hold. Without requiring copyright holders to explain the alleged violations they claim to have observed, eBay will promptly remove the listings in question. Rights holders are essentially “deputized” and can have any listing removed; by eBay’s own admission, “eBay cannot be an expert in your intellectual property rights in over 25,000 categories, and cannot verify that sellers have the right to sell the millions of items they post on eBay each day, we need your help in identifying listings which do not appear on their face to infringe your rights.” Perhaps this should come as no surprise, airing on the side of overreaching is more prudent for eBay since the DCMA explicitly states that the Safe Harbor immunity only applies if the online service provider “responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.”
There are certainly circumstances in which a company could legitimately claim copyright infringement. If, for example, a copy of Photoshop were being sold with a picture of an installation CD that was obviously counterfeit, Adobe could file a good faith notification that a pirated copy of its software was being offered on the site. However, amount of power granted to VeRO member leaves the system very prone to abuse.
Companies ranging from high-end electronics-manufactures to the Church of Scientology are allegedly using VeRO to suppress a secondary market for their goods and to squash competition. While there is a counter-notification procedure, as mandated by the DMCA, according to one eBay guide , members wishing to protest their takedown need to undergo an obfuscated process by which they virtually need to “pry it [a counternotice] out of eBays hands. That is tough, eBay doesn’t seem to want to get involved in the counternotice process [sic] .” Furthermore, if the rights holder claims that it is a trademark, not a copyright, that is being infringed upon, eBay will “refuse to forward the counternotice at all”. Scott Pilutnik, an IP lawyer has likened VeRO to a fox having “little incentive to act prudently while guarding the henhouse”.
The process of notifying eBay that an item is infringing is remarkably easy. All a company needs to do is fax this very simple form. After the first complaint is filed by fax, companies are given an e-mail address to speed up the execution of subsequent claims. Unfortunately, this has led to people or groups—who are not copyright holders—using the VeRO process to have competitor’s auctions taken down). While eBay claims to have no tolerance for anti-competitive use of VeRO, just a quick glance at the form will reveal that filing a fraudulent notification would not be very difficult. As one blogger writes, all one needs to do is:
“1 – Purchase a prepaid cell phone with cash at any 7-11.
2 – Download the VeRO application/complaint form here.
3 – Sign up for a dead end email address (yahoo, gmail etc).
4 – Fill out the form and fax it to eBay (use a fax not at your home)
eBay will call the phone the first time you use the VeRO against someone, so never give the number to anyone and always answer it with your ‘Company Name’.”
The sheer amount of time involved and the often-frightening prospect of making statements under penalty of perjury and being embroiled in litigation—particularly against behemoth corporations—serve as deterrent to fighting the takedowns. Just look at how intimidating the counter-notice procedure is compared to the infringement claim form. Especially considering the sheer number of people whose businesses are centered around their sales on eBay, having listings taken down could be financially perilous and leave one feeling like Joseph K. in Kafka’s The Trial. Just three notifications by a VeRO member can result in suspension or termination of an eBay account and infringement claims—even if there is a successful counter-notice—remain on account holder’s record. This is beginning to sound more and more like the law in New Zealand that made me so outraged.
Even though part (f) of section 512 of the DMCA clearly stipulates the consequences of misrepresenting an infringement claim, I have yet to hear of anyone being punished for a false accusation through the VeRO program. This is especially disconcerting when a study spearheaded by the Director of the Intellectual Property Clinic at USC found that:
Thirty percent of notices demanded takedown for claims that presented an obvious question for a court (a clear fair use argument, complaints about uncopyrightable material, and the like);
In addition, we found some interesting patterns that do not, by themselves, indicate concern, but which are of concern when combined with the fact that one third of the notices depended on questionable claims:
Over half-57%-of notices sent to Google to demand removal of links in the index were sent by businesses targeting apparent competitors.
Check out some of the VeRO horror stories at http://www.auctionbytes.com/forum/phpBB/viewforum.php?f=35-.
It is clear that VeRO must be changed to take the rights of sellers into greater consideration. However, until the DMCA is modified, it is doubtful that eBay would make any changes as doing so could make it liable for copyright and other types of IP infringement while the status-quo entitles it to safe harbor protection, albeit while subjecting sellers to a convoluted process.
