SOPA is Unnecessary. Congress Can Simply Overrule the Verizon Decision

Godaddy.com backed down this week in its support of the anti-piracy legislation that is working its way into Congress, bullied by the “if-I-can-get-it-for-free-it-has-to-be-legal” crowd that seems to be intent on unrestrained distribution of copyrighted works.

There is a simple solution to the dilemma of digital piracy, however, one that will cost the government nothing, that will protect free speech and that will ultimately bring an end to a practice that is undermining the viability of our cultural industries.  More importantly, it will enable Congress to avoid polluting legitimate free speech issues with behavior that is neither protected by the Constitution nor lawful.

Simply let copyright holders exercise the right to efficiently discover the identity of infringers.  Copyright law as it presently exists with its substantial civil remedies will take care of the rest of the problem.

GoDaddy Backs Down

In a statement issued by GoDaddy, it said that it was going to “listen”to its customers, some of who were purportedly organizing a boycott of the company’s services, and back away from its involvement with the drafting of the Stop Online Piracy Act (SOPA.)  The debate over the SOPA pits the cultural industry, which makes content, against the on-line industry, which distributes it without participating in the cost.  The web companies have the support of the pirates, who are nothing if not vocal.

There are some major flaws in SOPA, not the least of which is the government’s ability to ban web sites.  The due process and free speech issues raised by such a provision are extremely troublesome, and the cost of yet another government bureaucracy is unjustified.

Allow Subpoenas Directly to Cable Companies

The answer is simple.  Congress should overrule two decisions that held that copyright owners could not use the Digital Millenium Copyright Act (DMCA) to subpoena the identities of infringers directly from cable internet service providers.  These two decisions, Recording Indus. Ass’n of America v. Verizon Internet Servs., Inc., 351 F.3d 1299 (D.C. Cir. 2003) and In re Charter Communications, Inc., 393 F.3d 771 (8th Cir. 2005), have made it extremely difficult for copyright owners to find and prosecute civil claims against the wide-spread piracy that occurs on peer-to-peer networks.

Both cases involved attempts by copyright owners to use a provision in the DMCA that allows the owners to issue takedown notices to Internet Service Providers (ISPs) and to also obtain a subpoena to learn the identity of the infringer.  The Verizon and Charter Communications courts held that the takedown notice-subpoena provisions did not apply to claims seeking to discover the identify of Internet account holders.

It was a strained reading of the statute to begin with, and it has led to a morass of litigation and discovery disputes in which there are conflicting jurisdictional and venue decisions on a nearly daily basis.  More significantly these decisions closed the courthouse doors to any copyright holder that cannot demonstrate widespread copying sufficient to justify bringing a large “John Doe” action just to find out who the culprits are.  Moreover, in a relatively small number of cases, hostile district judges are unwilling to let the cases go forward in any reasonably economic manner.

Court Decisions Upset DMCA Balance

The DMCA was intended to balance the interests of the cultural content producers against the then burgeoning on-line industry.  The idea was that ISPs of all sorts would be protected against vicarious liability claims, but that they would have to make certain concessions – including the obligation to take down offending material and to disclose the identity of the responsible individuals.

The Verizon decision destroyed that balance.  Meanwhile, illegal copying and distribution have become sources of revenue for on-line service providers like Google and even the palpably illegal torrent networks that, of course, sell advertising.

Copyright holders know that their works are being pirated.  They know where they are being pirated and how they are being pirated.  But they simply cannot get to the pirates.  If Congress were to overrule these decisions, the problem would disappear as the people who break the law would find themselves facing the serious consequences of a civil infringement suit.  The infringers would pay for the remedy through statutory fee shifting.

Private enforcement litigation would replace the need for government oversight of our Internet habits, and those who break the law would fund the system.  Digital piracy, in its present form, would quickly come to a halt for the same reason that we don’t shoplift copies of DVDs from Walmart.  It’s too easy to get caught and the penalties are too severe.

Real Cost of Piracy

The real cost of on-line piracy is staggering.  A report recently published on Torrent Freak estimated that the top-ten illegal downloads of movies accounted for about 75 million illegal copies.  When you consider that most illegal downloading replaces DVD purchases, that’s well over $1 billion.  And that’s just the top 10 pirated movies for a single year.

Yes, I know that we represent copyright holders in torrent litigation.  I understand that what I am suggesting would make our job easier (the popular belief among the torrent crowds is that this work is a license to print money.  That view is, simply put, wrong.  It and, perhaps, more lucrative.  It will also quickly reduce the amount of work for enforcement lawyers.