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
The collapse of support for SOPA was
principally due to concerted efforts by
was a flawed piece
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
Pamela Samuelson ( firstname.lastname@example.org) is the
richard M. sherman distinguished Professor of law and
information at the university of California, berkeley.
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