What Is Up with PIPA/SOPA? - Joseph R. Carnicella Picadio Sneath Miller & Norton, P.C.
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What Is Up with PIPA/SOPA?
Joseph R. Carnicella
Picadio Sneath Miller & Norton, P.C.
444 Liberty Avenue, Suite 1105
Pittsburgh, PA 15222
(412) 288-4000
jcarnicella@psmn.comJoseph R. Carnicella is an associate with Picadio Sneath Miller & Norton, P.C., in Pittsburgh, where he focuses his practice in the areas of commercial and intellectual property litigation. Mr. Carnicella also works with clients to register, monitor, and defend trademarks. He is admitted in Pennsylvania and New Jersey, and is a licensed patent attorney with the United States Patent and Trademark Office. Also, Mr. Carnicella is admitted into the United States Court of Appeals for the Federal Circuit, the U.S. District Court for the Eastern District of Pennsylvania, and the U.S. District Court for the Western District of Pennsylvania.
What Is Up with PIPA/SOPA?
Table of Contents
I. Presentation................................................................................................................................................463
What Is Up with PIPA/SOPA? ❖ Carnicella ❖ 461What Is Up with PIPA/SOPA?
I. Presentation
Piracy is not a novel issue, yet media companies are always searching for innovative ways to combat
the unlawful use of intellectual property primarily by overseas websites, such as The Pirate Bay. In 2011, legis-
lation was introduced in an attempt to strengthen the ability of the government and private intellectual prop-
erty right holders to fight websites dedicated to infringement and counterfeit goods. Preventing Real Online
Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 or the PROTECT IP ACT of 2011
(PIPA) was introduced by the U.S. Senate on May 12, 2011 “to prevent online threats to economic creativ-
ity and theft of intellectual property, and for other purposes.” Similarly, a sister bill, Stop Online Piracy Act
(SOPA), was introduced by the U.S. House of Representatives on October 26, 2011, “to promote prosperity,
creativity, entrepreneurship, and innovation by combating the theft of U.S. property, and for other purposes.”
PIPA and SOPA have received a strong backing from certain companies and industries. The support-
ers of the legislation include many copyright and trademark owners in all aspects of the media business (e.g.
the Motion Picture Association of America) who believe that there are not enough protections in place to curb
piracy being committed abroad. The advocates believe that action must be taken immediately against those
who use websites to make illegal profits by stealing United States intellectual property. Moreover, they believe
that the legislation would do nothing to impact freedoms or censorship as those rights existed prior to the
proposed legislation.
However, the legislation has also come under fire by many tech companies. On January 18, 2012,
companies opposing the legislation held a series of protests ranging from a blackout of a home page, which
was done by Google, to a full stage blackout of the website for 24 hours, which was done by Wikipedia. The
opponents of the legislation believe that the present form is too broad and would cause a chilling effect on
innovation and increase censorship of perfectly lawful websites. Also, opponents question the constitutional-
ity of the legislation by asserting that the legislation amounts to nothing more than ex parte proceedings for
the government or a private plaintiff to present evidence without the operator of the alleged site being present
or made aware of such proceedings. Moreover, opponents believe that the legislation should not include pri-
vate causes of action, which could result in an increase of lawsuits by trolls in order to force settlements with
sites that are attempting to perform lawfully. Critics of both pieces of legislation believe that SOPA is the more
extreme of the two because, inter alia, in addition to targeting domain name system providers, financial com-
panies and ad-networks, SOPA would target companies that provide internet connectivity as well and require
that internet providers monitor traffic and block sites suspected of copyright infringement.
PIPA would afford the Attorney General the right to seek either a court order in personam against
a registrant of a nondomestic domain name (NDN) used by an internet site dedicated to infringing activi-
ties (ISDIA) or an owner or operator of an ISDIA accessed through an NDN, or a court order in rem against
the NDN used by an ISDIA, i.e. against a domain name itself instead of individuals, if such individuals can-
not be found. Also, PIPA would afford the Attorney General or an intellectual property right owner harmed
by an ISDIA the right to seek a court order in rem against a domain name used by an ISDIA if a registrant of
an ISDIA’s domain name or an owner or operator of an ISDIA accessed through a domain name cannot be
located. Moreover, under PIPA, financial transaction providers and other service providers could be com-
pelled to take reasonable specified preventative measures to prevent such ISDIA activity. In turn, the financial
transaction providers and other service providers would receive immunity for voluntarily taking certain pre-
What Is Up with PIPA/SOPA? ❖ Carnicella ❖ 463ventative actions against ISDIAs, and the domain name registries and registrars and other service providers
would receive immunity for withholding services from infringing sites that endanger public health by distrib-
uting prescription medication that is counterfeit, misbranded or without a valid prescription.
SOPA would afford the Attorney General the right to seek a court order against a U.S. directed for-
eign internet site committing or facilitating online piracy to require the owner, operator or domain name
registrant, or the site or domain name itself if such persons cannot be found, to cease and desist further activi-
ties constituting specified intellectual property offenses. Also, SOPA would set forth a process allowing those
harmed by a U.S. directed site to first provide written notification identifying the site to related payment net-
work providers and other service providers and requiring the sites to suspend their services to the identified
site. Upon receipt of a notification, the site’s owner, operator or domain name registrant, would be entitled to
provide a counter notification explaining that it is not dedicated to engaging in specified violations. At this
juncture, the intellectual property right holders would be entitled to commence an action for limited injunc-
tive relief against the owner, operator or domain name registrant, or against the site or domain name itself or
against a payment network provider or other service provider that fails to suspend its services in the absence
of such a counter notification. Moreover, under SOPA, service providers may be ordered to carry out certain
preventative measures such as withholding services from an infringing site or preventing users located in the
United States from accessing the infringing site. Similar to PIPA, SOPA would provide immunity to the service
providers and domain registries and registrants that take actions required by the Act. Finally, SOPA would
expand the criminal components and increase the penalties relating to copyright infringement.
Ultimately, the strong protests compelled Senate Majority Leader Harry Reid to announce that a vote
on the legislation would be shelved until a resolution was reached on the issues raised in response to the pro-
posed legislation. On January 23, 2012, the legislation was withdrawn by unanimous consent in the Senate.
As a result of the mass opposition to PIPA and SOPA, Congress introduced alternative legislation on
January 18, 2012: the Online Protection and Enforcement of Digital Trade Act (OPEN Act). The primary dis-
tinction between OPEN and PIPA/SOPA is that the U.S. International Trade Commission (USITC) is respon-
sible for enforcing the legislation as opposed to the Department of Justice or private intellectual property right
holders. Under OPEN, the USITC would be authorized to investigate alleged violations on its own initiative or
is required to investigate any such alleged violation upon receiving a complaint by the owner of a copyright or
trademark that is the subject of the infringing activity. USITC would also be directed to terminate, or not initi-
ate, an investigation under certain circumstances. Furthermore, OPEN would authorize USITC to issue a cease
and desist order against an internet site (and its owner and operator) determine to be an ISDIA operated or
maintained in violation of the Act, and permit complainants to serve a copy of the order on financial transac-
tion providers and other service providers for the site. The service providers would then be required to take
reasonable measures designed to prevent or prohibit the unlawful activity of the ISDIA. Finally, OPEN would
contain additional safeguards in an attempt to resolve other issues that have been raised in response to PIPA
and SOPA.
OPEN has received support from most of the same companies that have opposed PIPA and SOPA.
The supporters believe that OPEN would better preserve the free Internet by balancing the interests of protect-
ing against online piracy while maintaining a system wherein decisions such as infringement and trade policy
would be made by the trade commission rather than magistrates, an appeals process would be in place, and
the legislation would apply only to websites that willfully promote copyright violation. Opponents are con-
cerned with, inter alia, the length of time for a resolution of a claim if these matters are to be argued before
the trade commission rather than local courts.
464 ❖ 2012 Annual Meeting ❖ October 2012As demonstrated by the various proposals and the issues raised in opposition to the legislation, our
delegates are faced with a difficult and complex issue that will not be resolved without further contention.
However, there appears to be support from those impacted by overseas websites committing these unlawful
acts for a system to be implemented that reduces and/or eliminates altogether online trafficking of intellectual
property and counterfeit goods.
References:
http://thomas.loc.gov/cgi-bin/bdquery/z?d112:s.00968:
http://thomas.loc.gov/cgi-bin/bdquery/z?d112:h.r.3261:
http://thomas.loc.gov/cgi-bin/bdquery/z?d112:H.R.3782:
Michael Cieply, Opponent of Antipiracy Bill Backs Counterproposal, The New York Times, Decem-
ber 1, 2011. http://mediadecoder.blogs.nytimes.com/2011/12/01/opponent-of-antipiracy-bills-signs-on-to-a-
counterproposal/.
Jared Newman, SOPA and PIPA: Just the Facts, PCWorld, January 17, 2012. http://www.pcworld.com/
printable/article/id,248298/printable.html.
Christina DesMarias, SOPA, PIPA Stalled: Meet the OPEN Act, PCWorld, January 21, 2012. http://
www.pcworld.com/article/248525/sopa_pipa_stalled_meet_the_open_act.html.
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