The next threat to online rights may not be posed by a piece of legislation, but rather from a series of tacit agreements worked out between content holders, payment processors, and service providers.
In a piece penned for Slate, Marvin Ammori claims the same groups that lobbied for the creation of the controversial 2011 Stop Online Piracy Act (H.R. 3261) are at it again -- but this time they are using a route that doesn't involve Congress at all.
Why SOPA was shut down
The furor over SOPA stemmed from the difference between SOPA's professed purpose and what it could actually be used to accomplish. Its ostensible goal was to make it tougher for websites not located in the United States to sell counterfeit copyrighted merchandise: fake designer clothing, knockoff prescription drugs, and bootlegged copies of movies or music.
Few people objected to the idea of stopping the sales of counterfeit goods. But as worded, SOPA could be used to block or shut down sites under the guise of copyright infringement, with little in the way of oversight or due process to protect the accused. Backers of the bill claimed that worries about end runs around due process were overblown, but InfoWorld's Bill Snyder was skeptical about their claims of how much is lost each year to piracy and how such claims were used to justify what he saw as broad, overreaching legislation.
Protests against SOPA (and its sister legislation, PIPA) were vigorous and widespread enough -- including voluntary blackouts of major sites like Reddit -- that passage of the bill was stalled indefinitely. But Ammori, who was one of Google's legal representatives during its campaign against SOPA in 2011, has observed several signs that "copyright lobbyists," as he calls them, are preparing to try again.
The new boss, same as the old boss
First up, says Ammori, is a House Judiciary Committee hearing on "Section 512 of Title 17," also known as the Digital Millennium Copyright Act (DMCA). SOPA was seen as an end run around the DMCA, which made it easier for sites to operate without worry about being held liable for users' actions, and for copyright owners to have infringing material removed without excessive litigation. The point of the hearing: to have law professors, copyright holders, and legal counsel speak their minds about both sides of the issue.
Committee Chairman Bob Goodlate called attention to two issues that have arisen since passage of the DMCA. One is the whack-a-mole game, where infringing content is taken down only to immediately resurface somewhere else; the other is "the quality of the notices and the impact upon other important legal doctrines such as fair use and the First Amendment."
The committee meeting is not by itself hugely ominous, but Ammori indicates that there's pressure on the part of copyright holders to tilt things in their direction.