December 8, 2011 | By Parker Higgins

Blacklist Bills Ripe for Abuse, Part I: "Market-Based" Systems

Proponents of the misguided Internet blacklist legislation — the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA) — downplay the idea that the overbroad bills could be used for censorship. But one only needs to look at the way existing copyright laws have been abused to know there’s serious cause for concern.

From shocking examples of government censorship without due process through domain name seizure, as we've seen with both Rojadirecta and now with the yearlong saga of (which we address in the second post in this series), to bogus DMCA takedowns and actual litigation, the message is clear: the government and corporations have no problem abusing legal process to threaten or shut down legitimate speech.

In fact, many companies abuse the current system as part of their business model

Consider the case of Medical Justice, a service that provides doctors with contracts for patients to give up the copyright to any future reviews the patient may write about the doctor. If an unhappy patient posts a negative review on sites like Yelp, the doctor can serve a DMCA notice for copyright infringement and have the post removed.

Even assuming the doctor actually gained a legitimate claim on the patients’ review, posting negative reviews would, of course, be a classic case of fair use. But the real problem is that this scheme impinges upon core First Amendment protected speech. As EFF has repeatedly documented, this tactic still works because many websites will take down material after receving a notice regardless of fair use to avoid being dragged into expensive litigation. For them, sometimes the fight for free speech isn’t worth draining money out of their business.

But Medical Justice’s program may well be coming to an end. Last week, one frustrated patient took the issue to court, after an overzealous dentist demanded removal of a negative review based on her Medical Justice contract, and even demanded the patient pay $100 for each day day the negative review was posted. After a slew of negative publicity, Medical Justice stated it would retire these specific types of agreements.

Like this patient, a few companies, like Yelp, push back against bogus DMCA notices. But SOPA will make that fight much harder. Instead of going directly to websites, the notices go to the target’s advertisers and then a five day countdown starts. After five days, the advertisers could cut off services to the entire website — for one violation. And the advertisers won’t even have to check if these notices are valid. In fact, under the proposed laws, they are immune from punishment if they cut off a website that wasn’t infringing as long as they were given notice by the copyright holder.

The legislation is also unclear on how and when during these five days the advertising network will notify the site accused of infringement of the notice; there simply is no procedure specified. If the advertiser notifies the site on the fourth day, they would only have one day to respond. Inevitably, in some cases it will be too late, and even a completely innocent site could have to deal with a sudden loss of revenue. And what if the advertiser doesn’t notify the website at all before cutting off its services? Nothing, according to the bills.

If that's not problem enough, consider that the notorious copyright troll Righthaven, now on the verge of bankruptcy, may see a second life if SOPA passes. Currently, when Righthaven pursues copyright claims for online content, it also seeks a domain name seizure, a remedy not allowed by law. In one egregious example, Righthaven tried to seize the domain name of Drudge Report, one of the most visited sites on the Internet — all for posting a link and a thumbnail image taken from a news site. Most news sites would be ecstatic for a link from Drudge because of the traffic it drives, and courts have decided that the posting of thumbnails is protected fair use. But that didn’t stop Righthaven. They sought monetary damages and wanted the domain name that was reportedly worth over $10 million.

And these stories of abuse aren’t just on the fringe: even major players have gotten in on the game. Warner Bros. Records recently admitted in court to systematically sending out DMCA takedown notices for files they never examined or owned the copyright to. The EFF has been involved in litigation for years over a takedown notice Universal Music Group filed for a 29 second video of a dancing toddler. What if a record label uses its automated tools to send out thousands of copyright notices to advertisers under SOPA? There is nothing to stop them from targeting up-and-coming competitors or websites with legitimate fair use claims. The procedure not only bypasses any sort of meaningful due process by giving payment processors and ad networks the final say, but it also creates incentives for those revenue partners to judge in favor of the rights holder every time.

Supporters of SOPA and PIPA say those bills are only supposed to stop legitimate copyright infringement. But the blacklist bills give much more speech-silencing power to those who are already willing to exploit provisions in the current laws. When you give these awesome powers to content companies — who already admit their tactics are overbroad — you're giving it to Medical Justice and Righthaven, whose very existence depends on taking advantage of the unintended consequences of copyright laws.

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