January 2, 2012
Website legal compliance is now under serious consideration by lawmakers in Washington. The U.S. Congress is now considering two proposed bills, which if enacted into law, would provide ground-breaking weapons for law enforcement and content owners to enforce intellectual property rights. If you’re a content owner that provides content on the Internet, you have an important stake in the current legislative process.
The competing bills currently under consideration – The Protect IP Act (Protect IP) and Stop Online Piracy Act (SOPA) – are both aimed at websites that are focused on infringing the intellectual property rights of content owners. What’s both creative and controversial about these proposed laws from a website legal compliance perspective is the enforcement mechanism – shutting down the offending websites regardless of whether they’re U.S. based or foreign based websites.
The typical offenders that are the targets of Protect IP and SOPA are websites that pirate and illegally stream movies, TV shows, and music. However, if you’re a content owner with valuable content that may be the target of infringers, these proposed statutes may provide important legal remedies for you to protect your intellectual property.
The Protect IP Act
The target in Protect IP are websites that are “dedicated to infringing activities”. The key to determining if a website falls under this standard is whether it can be proved that the website has “no significant use” other than engaging in or facilitating infringement.
Remedies for violations are three:
* blocking the domain name from DNS servers and search engine results (available only to U.S. law enforcement),
* mandate that financial institutions (meaning primarily credit card processors) cease doing business with offending websites to the extent of U.S. online customers (available both to U.S. law enforcement and content owners), and
* prohibition of advertising services that provide ads to offending websites from continuing to do business with them (available both to U.S. law enforcement and content owners).
Stop Online Piracy Act (SOPA)
SOPA is similar to Protect IP, but there are differences. The key difference is that SOPA lowers the bar for proof requirements when determining which sites are “infringing”, meaning that content owners would have an easier task in getting to the remedies.
Under SOPA, content owners would only have to prove that an offending website is “dedicated to the theft of U.S. property”, clearly a much lower proof requirement than Protect IP’s.
Unlike Protect IP, SOPA would employ a procedure similar to the current DMCA notice and counter-notice procedure prior to bringing action against an infringing website. The notice would enable payment network providers and Internet advertising services the opportunity to cease dealing with offending websites prior to an action for a court order.
Given the severe remedies of both bills – shutting down offending websites – critics are numerous, particularly regarding SOPA. Critics argue that the severe remedies amount to censorship with related violations of free speech, plus they argue that there will be serious unintended consequences.
Most commentators are predicting that a statute with the same goals as both Protect IP and SOPA will eventually find consensus and be passed into law. If you’re a content owner that provides content the Internet, the outcome will likely affect you in a significant way.
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