Posts Tagged ‘free speech’

What a Nightmare: SOPA H.R. 3261

January 18, 2012

As the subject of today’s protests across the internet, SOPA – the Stop Online Piracy Act – is a appalling piece of proposed legislation.  The full text of the proposed Act is here.

SOPA has a savings clause designed, in theory, to prevent its provisions from violating Constitutional rights.

FIRST AMENDMENT- Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution.  (SOPA, Section 2 (a) (1) emphasis added).

Yet, provisions of the bill seem to present a clear potential for the prior restraint of speech–in violation of the First Amendment.  For example, this  includes SOPA’s provisions for the use of Search Engines to essentially censor content within 5 days of a court’s order–a restraining order that can be issued prior to a full review, trial, or hearing.

INTERNET SEARCH ENGINES- A provider of an Internet search engine shall take technically feasible and reasonable measures, as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order, 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. (SOPA, Sec. 2 (c)(2)(B) emphasis added).

A search engine company served with the restraining order must remove links to the website within 5 days.  In other words, the search engine is required to exclude the allegedly infringing site from being found in a Google search, e.g.,–essentially hiding the content from the public.

SOPA would enable a  court to issue an restraint order before any trial or hearing has occurred–in other words, before there has been a determination of whether or not the defense of fair-use may apply.  Therefore, if it turns out later that the material was not an unlawful infringement, if it was a parody for example, then the court order would have effectively restrained protected speech without due process.

As a reminder…the First Amendment ensures that: “Congress shall make no law…prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…” (Emphasis added).

It may be that the Act is almost self-canceling on the point of Congressional interference with speech rights.  Despite the savings clause, the bill is not narrowly drawn and there does not appear to be sufficient limitations to prevent a potential restraint of protected speech.  If it passes, SOPA seems sure to promote an avalanche of expensive and time consuming litigation.

Just a few more provisions to ponder (with emphasis and some comments added):

(a) Definition– For purposes of this section, a foreign Internet site or portion thereof is a `foreign infringing site’ if–

(1) the Internet site or portion thereof is a U.S.-directed site and is used by users in the United States;

(2) the owner or operator of such Internet site is committing or facilitating the commission of criminal violations punishable under section 2318, 2319, 2319A, 2319B, or 2320, [criminal copyright infringement] or chapter 90 [protection of trade secrets/intellectual property rights], of title 18, United States Code; and

(3)  the Internet site would, by reason of acts described in paragraph (1), be subject to seizure in the United States in an action brought by the Attorney General if such site were a domestic Internet site.

(SOPA, Sec. 102, emphasis and bracketed comments added).

 The Attorney General can commence an action under SOPA simply “on notice” to the following:

 (A) to the registrant of the domain name of the Internet site…

 (B) to the owner or operator of the Internet site…

(C) in any other such form as the court may provide, including as may be required by rule 4(f) of the Federal Rules of Civil Procedure…

(Sec. 102 (b)(3)).

Updated/revised 1/18/2012

What is Fair Use?

March 27, 2009

Fair use is a defense to copyright (or trademark) infringement.  A person (a defendant in a lawsuit) that takes up this position is admitting, for the purpose of the defense, that he or she did infringe the owner’s copyright, but that such a use constitutes a fair use of the material.  The reason that the use is or may be fair relates to Constitutional free speech rights.  This, however, does not mean that all such uses are a fair use, nor that the assertion of  fair use will always result in a successful defense to infringement.  Rather, to put forth a fair use defense is to assert the issue of speech rights into the argument.  In a lawsuit, the court then decides if  the act constitutes a fair use or not.  This decision is made by the court, the judge, by balancing certain statutory factors.  No single factor is dispositive (theoretically at least).  Generally, the judge will analyze the facts, apply them to each factor, consider which party is favored for each, and then come to a decision by balancing the overall result of the analysis.

 The statutory fair use factors are: 

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

 ~ 17 U.S.C. § 107 Limitations on Exclusive Rights:  Fair Use  (emphasis added).

In turn, these factors are defined by case law that has developed over time.  A few interesting cases to consider for research on the interpretation of the factors are:

Blanch v. Koons, 467 F.3d 244 (2nd Cir. 2006) 

Rogers v. Koons, 960 F.2d 301 (2nd Cir. 1992) 

Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) 

Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) 

American Geophysical Union v. Texaco, 60 F.3d  913 (2nd Cir. 1994) (amended 1994 & 1995) 

Sony v. Universal City Studios, 464 U.S. 417 (1984) 

 

Related:

Fair Use (U.S. Copyright Office) 

Infringement and Fair Use (ArtUntitled.com)