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Proposed US copyright laws threaten innovation, growth and cybersecurity, brands say

Out-Law News | 18 Nov 2011 | 10:05 am | 2 min. read

Several major internet companies have expressed their "concern" at draft US laws that aim to combat online copyright infringement by foreign websites.

Google, Facebook, eBay and Mozilla are among a group of nine major brands to put their name to a letter outlining their objections to proposals set out in the Protect IP Bill and Stop Online Piracy Act (SOPA). The letter was sent to leaders of Congress which was due to debate the contents of SOPA on Wednesday.

Under the SOPA proposals copyright owners would be able to obtain court orders that force internet services providers (ISPs) to block access to copyright-infringing websites. Under the law search engines would also be forced to "take technically feasible and reasonable measures ... designed to prevent the foreign infringing site that is subject to the order, or a portion of such site specified in the order, from being served as a direct hypertext link". The proposed law would also force "payment network providers", such as credit card companies, and advertising networks, could also be forced to stop their cooperation with websites found to be infringing.

Protect IP (30-page / 211KB PDF) would enable the US Government to obtain court orders "against the non-domestic domain name used by an internet site dedicated to infringing activities" if the website is used in the US, "conducts business directed to" US residents and "harms" US IP rights holders. The orders would force the sites, which are defined under the draft laws as having "no significant use" other than for infringement, to "cease and desist from undertaking" further infringement.

Under Protect IP court orders can also be issued to domain name operators, "information location tools", such as search engines, "financial transaction providers" and advertisers to block exposure to, or cease business with, the copyright-infringing sites.

The advocates of the proposed new laws, including those in the creative industries, believe the measures are necessary to prevent foreign-based websites stealing US intellectual property. But, despite supporting the "stated goals" of the draft legislation, some major online firms oppose the draft provisions.

"Unfortunately, the bills as drafted would expose law-abiding US internet and technology companies to new uncertain liabilities, private rights of action, and technology mandates that would require monitoring of web sites," the letter sent by the nine internet companies said. 

"We are concerned that these measures pose a serious risk to our industry’s continued track record of innovation and job-creation, as well as to our Nation’s cybersecurity. We cannot support these bills as written and ask that you consider more targeted ways to combat foreign 'rogue' websites dedicated to copyright infringement and trademark counterfeiting, while preserving the innovation and dynamism that has made the internet such an important driver of economic growth and job creation," the letter said.

The group expressed concern that internet companies would lose their 'safe harbor' immunity from liability under the plans set out in SOPA. Under existing US copyright laws set out in the  Digital Millenium Copyright Act (DMCA), ISPs and other web hosts are not liable for users' copyright-infringing behaviour as long as they are ignorant of it. They are responsible once they have been told about infringement, though.

"Since their enactment in 1998, the DMCA’s safe harbor provisions for online service providers have been a cornerstone of the US internet and technology industry’s growth and success," the group said in their letter.

"While we work together to find additional ways to target foreign rogue sites, we should not jeopardize a foundational structure that has worked for content owners and internet companies alike and provides certainty to innovators with new ideas for how people create, find, discuss, and share information lawfully online," they said.

In September the UK's Culture Secretary Jeremy Hunt said that ISPs, search engines, credit card companies and advertisers could be subject to new communications laws that would require them to act on court orders to help tackle online copyright infringement.

The Department for Culture, Media and Sport (DCMS) has also been facilitating behind-the-scenes discussions between rights holder groups, ISPs and other stakeholders in an attempt to formulate a new self-regulatory code of practice around website blocking, according to documents obtained by digital rights campaigners the Open Rights Group.

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