Tuesday, January 10, 2012

US OSPs Are Imposing SOPA And PIPA Like Laws Upon Themselves

The tussle between intellectual property (IP) owners and online service providers (OSPs) in US is a continuous one. The IP owners are always looking forward for more stringent online IP protection laws whereas OSPs are more anxious to have a level playing field with no unreasonable liabilities.

Laws like Digital Millennium Copyright Act (DMCA) 1998 were enacted to maintain a balance between these conflicting interests. Online Copyright Infringement Liability Limitation Act (OCILLA) was also passed as a part of the 1998 DMCA. In fact, new laws like Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PIPA) and the "Stop Online Piracy Act (SOPA) have also been proposed.

Obviously, both SOPA and PIPA would have far reaching consequences for OSPs in US. Those supporting laws like SOPA and PIPA believe that the DMCA doesn't work against websites that just ignore the requests. This is a truth as we also have been facing such problems from US websites operators who are openly and repeatedly violating our copyright.

Surprisingly, a majority of such US sites are not entitled to “safe harbour protection” at all as they themselves are not complying with the requirements of the DMCA. They do not understand that they are engaging in serious criminal offences by refusing to take down copyright violating posts, especially once the matter has been brought to their knowledge and they are not in compliance with DMCA requirements.

Naturally, US need to change its policy towards foreign IPRs violations. Either US must implement DMCA in a manner that prevents copyright violations of foreign nationals and organisations or it must devise some other method for foreign IP enforcements. Initially it seemed US has decided to adopt the latter approach by proposing laws like SOPA and PIPA but now it appears to be a national IP protection mechanism of US citizens and corporations and not foreign IP holders. Other countries can also follow this option and this situation has been imposed by US OSPs upon themselves as they are flouting copyright laws across the world with great disregard.

According to proposed laws, foreign websites that are indulging in unethical behaviours like cyber crimes, intellectual property rights (IPRs) violations, etc can be forced to be taken down or blocked in US by US government as the US webhost company would be aiding criminal activities if it refuses to remove copyright violating or offending posts. However, as per the proposed laws, US would not take down domestic websites. This seems to be the real problem and India must analyse this situation from its own perspective and interests.

The foreign websites may be hosted at a server that resides in a foreign territory hence such websites cannot be taken down and blocking of such foreign websites in US remains the only option. There are many US sites that are hosted upon US servers and they openly violate copyrights of others, including India. Can India take down such sites? Obviously India cannot do so and blocking of such websites in India seems to be only other option. By not taking down copyright violating materials of foreign jurisdictions, US OSPs are inviting big troubles and draconian laws for themselves. Of course, Google seems to have a good system at place that forces such unscrupulous online advertisement revenue generators to comply with laws.

However, a question arises what should India do to protect copyright of its citizens and Indian organisations when the DMCA system of US collapses or OSPs do not comply with the same? Here are some options in this regard:

(1) Blocking of copyright violating websites in India by Indian government or its agencies may be the first method .This seems to be a actions worst than DNS redirection but if the attitude of US OSPs do not change, this may be the preferred option in India and other countries. However, blocking of IP violating websites/platforms is definitely better than using distributed denial of service attacks (DDOS) to take down the offending websites/OSPs platform or using DNS cache poisoning attacks to manipulate DNS services.

(2) Blocking of offending websites with the help of judicial orders. This may be a good option provided blocking of offending websites is done in a reasonable manner.

(3) Mutual protection mechanisms at the government department’s level between US and India. This seems to be the best option.

Perry4Law and Perry4Law Techno Legal Base (PTLB) suggest use of a “prima facie violation test” using an “informal communication method”. A majority of OSPs in US are not aware of the requirements of DMCA still they insist upon filing of a DMCA complaint. They do not realise that they are not fulfilling the prerequisites of “safe harbour protection” at all and insisting upon filing a DMCA complaint to remove clear copyright violating contents would not save them from various civil, criminal and financial sanctions.

Under the “prima facie violation test”, the copyright owner or his agent/authorised complainant need not to file a DMCA complaint and a written complaint through e-mail should be sufficient. All that is required is providing of copyright violating links and links of copyrighted materials. This is also sufficient otherwise as well because as per DMCA an OSP that is not complying with the safe harbour requirements is not entitled to its protection and an e-mail mentioning copyright violation is sufficient to impose various liabilities upon it.

We hope US would consider these suggestions of Perry4Law and PTLB while formulating any new legislation or policy for enforcement of foreign IP rights.