versally available.” Browser add-ons to avoid DNS blocking have already been developed and would be available on servers outside the U.S., even if illegal in the U.S.

The main problems with the dedicated-to-theft provisions of SOPA were, first, that it was too imprecise and second, that it represented a dramatic change in the rules of the road affecting Internet intermediaries.

What does it mean, for instance, for an Internet intermediary to take “deliberate actions to avoid confirming a high probability” of infringement on the site? If Viacom tells You Tube it has found infringing clips of “South Park” shows on its site, does YouTube become a site dedicated to the theft of Viacom’s property if it does not investigate these claims? If Universal Music Group objects to the resale of MP3 files of its music on eBay, does eBay become a site dedicated to theft of Universal’s property because one or more of its users offer the MP3 files for sale there?

Many Internet companies considered the dedicated-to-theft definition to be fundamentally inconsistent with the safe harbors established by the Digital Millennium Copyright Act (DMCA). Under the DMCA, Internet intermediaries are obliged to take down infringing materials after they are notified about specific infringements at specific parts of their Web sites. They have no obligation to monitor their sites for infringement. The safe harbors have been an important factor in the extraordinary growth of the Internet economy.

It may be apt to characterize sites such as Napster, Aimster, and Grokster as having been dedicated to the theft of U.S. intellectual property, but existing copyright law supplied copyright owners with ample tools with which to shut down those sites.

Had the entertainment industry sought more narrowly targeted rules aimed at inducing payment providers and Internet advertising services to stop the flow of funds to sites that were really dedicated to infringement, such a law might have passed. But that was not SOPA.

Conclusion

The collapse of support for SOPA was principally due to concerted efforts by

Because soPa
was a flawed piece
of legislation,
the collapse was
a good thing.

Internet service providers (including Wikipedia, which went “dark” one day to protest SOPA), computer security experts, civil society groups, and millions of Internet users who contacted their Congressional representatives to voice opposition to the bill.

Because SOPA was a flawed piece of legislation, the collapse was a good thing. It would, however, be a mistake to think the battle over Internet intermediary liability for infringing acts of users has been won for good.

The entertainment industry is almost certainly going to make further efforts to place greater legal responsibilities on Internet intermediaries. This industry believes intermediaries are the only actors in the Internet ecosystem who can actually affect the level of online infringements that contributes to entertainment industry panics.

An odd thing about the entertainment industry is its deeply skewed views about piracy. In movies such as Pirates of the Caribbean, the industry glamorizes brigands who attack ships by depicting them as romantic he-roes who have great adventures and engage in swashbuckling fun. Yet, it demonizes fans who download music and movies as pernicious evildoers who are, in its view, destroying this vital part of the U.S. economy. Something is amiss here, and it is contributing to a profound disconnect in perspectives about how much the law can do to bring about changes in norms about copyright.

 

Pamela Samuelson ( [e-mail]) is the richard M. sherman distinguished Professor of law and information at the university of California, berkeley.

Copyright held by author.

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