While punch and counter-punch continue over the legislative insanity of SOPA, the Stop Online Piracy Act, it seems from Australia that non-American governments like our own either don’t understand, or have chosen to hold their silence, about the threat the bill poses to Web-based businesses outside the US.
Although the bill’s supporters promise faithfully that the target is an ill-defined creature labeled a “rogue foreign Website” (for example, in this apologia by an IP counsel for the US Chamber of Commerce), the bill also creates an environment favourable to false actions taken on anti-competitive grounds.
My friend and competitor, Nathan Cochrane, has a good discussion of how the bill might affect Australians here. As he writes: “If it is passed, I couldn't mention sites that allegedly hold infringing content or that point to it, for fear of being shut down, loss of my livelihood and possible extradition to the US to stand trial.”
In addition, however, there is the preferential position of American businesses to be considered.
Governments such as Australia’s have been quiet on SOPA, and they should not be, because by circumstance and design, the bill gives American businesses a whip with which to attack even legitimate foreign competitors.
By design, since the bill now explicitly targets “foreign” Internet sites; by circumstance, because so many “foreign” sites – including Australian sites – host all or part of their content in America, and because the bulk of Australian traffic travelling overseas starts its journey on a US route (the route with the greatest submarine cable capacity).
SOPA’s right of private action means, in effect, that an accusation is sufficient – a position which has long been sought by America’s content industries. Those familiar with the “AFACT versus iiNet” trial (now awaiting the judges’ decision in its High Court appeal) will know that one plank of the movie industry’s complaint against iiNet was that it didn’t consider the robot notices to be strong enough to justify proceeding against its customers; and that the content industries believe iiNet’s inaction was, in effect, hostile to them.
The private rights of action bestowed by SOPA create a regime that looks similar to what the content industry wanted of iiNet. At the very least, a business accused of infringement would have to carry itself and its case to America, even if the accusation were false, malicious or plain mistaken.
In the meantime, once a court order under SOPA were secured, the business would be offline to America.
For example, here's is a piece of content that’s mine-all-mine: as part of a private hobby, I recorded this audio of a Superb Lyrebird running through a hilarious routine of mimicry that includes a dog barking, its owner calling, a few bird calls, and someone turning over a car that won’t start.
The content is 100 percent mine – I can say “go ahead and copy it, just keep my name with it”. But proving so to a court would be difficult, proving it in a US court beyond my personal resources, and under SOPA, that provides a lever that someone could use to block The Register.
SOPA looks to me like a regime purpose-built for well-heeled scammers to create a nice line of protection racket: offshore competition to American businesses can be given the choice between trying to prove copyright over its content; pulling content that it lacks the resources to defend, regardless of its legitimacy or importance to its business; or paying off an accuser merely to keep operating.
SOPA’s proponents don’t care that unscrupulous operators might use the Act for anti-competitive purposes. Mr Tepp writes: “SOPA now applies exclusively to foreign sites”; there is, it seems, an implicit assumption that we foreigners start out guilty.
Content owners in Australia – even those paid off by aligned with SOPA’s supporters – need to start bombarding the attorney-general and foreign minister, demanding that at the very least they put legitimate Australian concerns and interests to the Americans. ®