Law & Disorder / Civilization & Discontents

Are SOPA sponsors about to make themselves felons? Probably not

reddit readers noticed that sponsors of the Stop Online Piracy Act have …

Rep. Lamar Smith (R-TX)

On Wednesday morning, reddit reader Dan Keshet made an interesting observation: Rep. Lamar Smith (R-TX), the lead sponsor of SOPA, has copyrighted videos available for download on his website. And the Stop Online Piracy Act imposes new criminal penalties for unauthorized streaming of copyrighted works. With the help of some other reddit readers, Keshet quickly compiled a comprehensive list of SOPA co-sponsors who had uploaded copyrighted videos to YouTube. It turns out almost all of them had done so.

The story quickly went viral. The Electronic Frontier Foundation tweeted the post, and it was re-tweeted more than 100 times. So are the sponsors of SOPA hypocrites? We're not fans of SOPA, so we'd love to have this story check out. But we're also a news site, so we contacted James Grimmelmann, a copyright scholar at New York Law School, (and judging from his tweets, not a SOPA supporter) to get his expert opinion.

He was skeptical. The new anti-streaming provisions would apply only to willful infringement. "A good-faith belief that one's actions are legal is sufficient to defeat a finding of willfulness," he told Ars. SOPA even codifies this principle by excluding from liability those who have "a good faith reasonable basis" to believe their conduct is not infringing.

"Even if the Representatives are infringing (and I think they have a good fair use defense, and may well have licenses we don't know about), they're unlikely to be willful infringers," he told Ars.

He also pointed out Smith and his colleagues would only be liable if the value of the streaming performances exceeds $1,000, and it's not clear how valuable a few short clips of local news broadcasts are.

We also checked with the Electronic Frontier Foundation, which had tweeted a link to the story. "One of the problems is that the streaming provisions are vague enough that it's very hard to be certain what kinds of streaming would be protected," EFF Intellectual Property Director Corynne McSherry told Ars. "And the current language includes noncommercial activity—so one obvious limit disappears, even though proponents of the bill insist they are only interested in 'high-tech bandits.'"

In other words, EFF isn't willing to endorse the hypocrisy charge. Given that EFF's job is to trash legislation like SOPA, that suggests it probably doesn't hold water.

Still, McSherry's broader point makes a lot of sense. Whatever else you might say about the Digital Millennium Copyright Act, it has been litigated to death, and that has given websites a pretty clear idea of what they need to do to qualify for its safe harbor. The Stop Online Piracy Act would upset the apple cart by exposing websites to new legal risks based on poorly defined concepts like "sites dedicated to theft of US property."

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