IP/Internet/New Media Blog

By Victoria Burke

On January 24, the Senate will have a procedural vote on the Stop Online Piracy Act (SOPA). The dynamics of SOPA are far-reaching and quite divisive. Supporters feel this legislation is the logical next step against foreign websites that circumvent current anti-piracy measures and those that offer counterfeit goods and pharmaceuticals. SOPA comes with the muscle of big name support. Some of the supporters include the MPAA, RIAA, NBA, MLB, NFL, as well as major studios such as Disney and CBS. Additionally, SOPA has the backing of the U.S. Chamber of Commerce, Microsoft, major pharmaceutical companies such as Pfizer, Eli Lilly and Company, and many others.

Yet, equally fervent are the opponents who worry about the resulting censorship from this Bill. Leading the charge in the opposition are Facebook, Twitter, Google, LinkedIn, Yahoo! and eBay to name a few. Besides vocalizing their objections, the opponents of SOPA are strategizing to make an attention grabbing protest. One idea involves an Internet blackout. Cnet describes this option as the “equivalent of a nuclear option.” Markham Erickson, executive director of NetCoalition (a trade association representing the leading global Internet and technology companies), confirmed to Fox News that such a blackout is under consideration. Erickson said, “a number of companies have had discussions about that.”

Currently, opponents have found success in boycotting SOPA supporters. When Go Daddy initially lent its support to SOPA (Stop Online Piracy Act), the company ended up suffering an exodus of domain customers. Those who feel the proposed legislation goes too far responded by sending Go Daddy a message. They spoke with their feet and left the company by transferring their domains to other providers. In order to stop the bleeding, Go Daddy released a statement withdrawing its support of SOPA. (Official statement from Go Daddy: http://www.godaddy.com/newscenter/release-view.aspx?news_item_id=378)

One article that breaks down the intricacies of this controversial legislation is: “What is SOPA Bill 2012? 7 Things to Know About Controversial Legislation” from the International Business Times. http://www.ibtimes.com/articles/272580/20111225/sopa-bill-2012-things-know-controversial-legislation.htm

By George M. Borkowski

A pending development in the Copyright Office will result in significant changes in the way an online service provider must designate an agent to receive notice of claimed copyright infringement under the Digital Millennium Copyright Act (DMCA).  As you will recall, an ISP that wants to invoke safe harbor protection under the DMCA for claims of copyright infringement by its users must, among other things, designate an agent to receive notice of claimed copyright infringement from content owners.  Failure to designate such an agent will make an ISP ineligible for DMCA safe harbor protection.

The current method of designating a DMCA agent is based on interim regulations that were promulgated by the Copyright Office when the DMCA was enacted in 1998.  Under the current rules, an ISP submits the name and contact information for its DMCA agent in a paper filing with the Office, which then maintains the information.  There is no enforceable requirement that this information be updated or maintained in a current state.  That obviously can create problems when designated agents change, or companies are bought or sold, or other changes occur at the ISP.

In recognition of these issues, the Copyright Office is proposing to amend its practices governing the designation of a DMCA agent by online service providers.  The proposal is to implement an electronic process under which service providers would designate DMCA agents to receive infringement notices.  If these new regulations are implemented, all online service providers would need to file new designations of agents within one year of the implementation of the new regulations.

The major proposed changes include the following:

• Implementation of an electronic (not paper) process, including an online submission form, by which service providers may designate agents to receive notice of claimed infringement, and the creation of an electronic database to search for designated agents.  ISPs that have already designated an agent under the current regulations will be required to file new designations.  The Office will no longer accept paper submissions.
• Any service provider that has filed an online designation of agent will be required periodically (most likely, every two years) to validate the information in its designation to keep the directory accurate.  Should an ISP fail to validate or amend its designation within the allotted time, the designation would expire and be removed from the directory.  This is significant, given that failure to have a designated DMCA agent will make an ISP ineligible for DMCA safe harbor protection.
• In addition to providing information about its designated agent, a service provider also would need to state its full legal name, physical address, and email address (in addition to that of its agent) so that the Copyright Office can send validation notifications to both the ISP and its designated agent.  Part of the reason for this proposal is to make it harder for rogue companies to hide from content owners who accuse them or their users of engaging in copyright infringement.
• The requirement of an actual signature would be eliminated.  The thinking is that, because all online filings will require the creation of an online account as well as payment of the accompanying fees with a credit card, checking account, or Copyright Office deposit account, the online system will reasonably be able to verify and authenticate the identity of the person submitting or amending the agent designation information.

There are additional proposals on more minor points that I have not mentioned here.  Whatever final regulations are implemented, it will be important for online service providers to submit and update DMCA agent information as required by the Copyright Office so as not to lose eligibility for the DMCA’s safe harbors.

The time for comments and reply comments closed on December 27, so we should expect new, final regulations in the not too distant future.  The proposed rules, plus comments from interested parties, can be found at the Copyright Office at this link:  http://www.copyright.gov/onlinesp/NPR/.

Mr. Borkowski is a partner at Freeman Freeman Smiley, LLP.  He  represents leading entertainment, video game and software companies and industry associations, as well as technology companies.

By Azita Mirzaian

Recently, representatives from the MPAA and The Net Coalition debated the merits of the proposed Stop Online Piracy Act (SOPA) legislation on Los Angeles public radio station KPCC’s AirTalk. Michael O’Leary, senior executive vice president of the Motion Picture Association of America, exchanged heated comments with Markham Erickson, executive director of The Net Coalition, an organization that represents leading global internet and tech companies such as Google and Amazon. While at times, the discussion devolved into snarky, off-topic accusations of who makes more profits and who is behaving in a more self-serving manner, the discussion was a good representation of the dichotomous positions of the tech industry and the film industry when it comes to SOPA.

The proposed SOPA legislation aims to aggressively protect copyrighted content on the internet by allowing the government to shut down and block access to offshore sites that enable online piracy of copyrighted content. During the discussion on AirTalk, the MPAA’s O’Leary insisted that the legislation is necessary to protect American jobs. He stated that the legislation not only protects creative communities such as the movie and music industries, but also protects consumers by ensuring that the pharmaceuticals, electronics, and fashion items that they purchase online are legitimate and safe.

The Net Coalition’s Erickson countered that although he is not opposed to stopping online piracy, the proposed SOPA legislation is an over-reaching, ineffective piece of legislation that will do little to stop online piracy while at the same time dangerously diminishing internet freedom. Erickson cited the example of Wikileaks to illustrate his point that that stopping payment processors and advertisers from working with offshore sites is an effective solution to the online piracy problem. But, he said, the SOPA legislation goes way beyond that by also having the government impose technological measures that would block users’ access to offshore sites. He stated his concern that this kind of over-regulation would damage the internet’s infrastructure, limit internet freedom, and hamper innovation.

You can listen to the full piece here

(http://www.scpr.org/programs/airtalk/2011/12/21/21848/online-privacy-act/).

Azita Mirzaian earned her J.D. from the University of Southern California Gould School of Law.  Her areas of interest include copyright protection, trademarks, and other intellectual property matters

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According to Rachel M. Zahorsky of the ABA  Journal Blog in the past five months, Virginia-based law firm Dunlap, Grubb, & Weaver has filed suits against thousands of individuals accused of illegally downloading independent films—an operation that could yield the firm and its clients over $15 Million.

Under the operative the U.S. Copyright Group, the lawyers seek out indie filmmakers and offer to sue anonymous movie pirates for no charge. The firm then subpoenas Verizon, AT&T and other ISPs to identify each John Doe user, and threatens to sue each person for $150,000 unless they agree to a $1,500 to $2,500 settlement fee, according to Ars Technica’s Law & Disorder blog and Techdirt. Defendants can pony up the cash on a website set up to accept checks and credit cards.

To identify illegal file-sharing, the firm uses a program that captures IP addresses based on the time stamp that a download has occurred and then checks it against a spreadsheet to make sure the downloaded content is the copyright-protected film and not a misnamed film or trailer, according to the Hollywood Reporter’s THR, Esq. blog