Operating a website in the world of SOPA and PIPA

Notable websites including Wired and Wikipedia marked Wednesday as a day of protest against two pieces of proposed legislation currently being considered by the United States Congress. If enacted, these bills, H.R.3261 (a.k.a. “Stop Online Piracy Act” or “SOPA”) and S.968 (a.k.a. “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011” or “PROTECT IP Act of 2011” or “PIPA”) would force major changes in how website owners managed their online properties and most likely resulting in limits on free speech.

Like everything related to the space where politics, big business, and the law intersect, nothing is simple. Is there copyright infringement on the Internet? Yes. Does something need to be done about it? Probably. Are these bills as the stand the best method? It depends on who you are.

Could you recognize copyright infringement if you saw it? Most would probably agree that websites that posts first-run movies, or songs from newly released albums are probably violating US Copyright law (though maybe not local laws if the website is hosted in another country). Not every case is this simple, however.

Let’s say you operate a website, and allow users to post comments. Since users can post anything they want, including copyright infringing material, your website would be in violation of Section 103 of SOPA, if you failed to preemptively moderate all user supplied content, such as guest articles, or even comments:

An ‘Internet site is dedicated to theft of U.S. property’ if–it is an Internet site, or a portion thereof, that is a U.S.-directed site and is used by users within the United States; and the operator of the U.S.-directed site–is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation of section 501 or 1201 of title 17, United States Code

This would make any website that allowed user submitted content, such as comments, to be labeled an Internet site dedicated to theft of U.S. property if the user content was not moderated, since failing to moderate would be deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation.

So, to stay within the law, you decide to moderate all user posts and comments before they are posted. You notice a user has posted a comment on one of your articles, and includes a quote from the New York Times website. Would you be in violation of SOPA for posting the comment?

This case is not clear, so you consult the original article. The quote is forty words of a thousand-word article. Is 4% a case of fair use, or copyright infringement? Surely the New York Times website will provide a simple answer. A quick consultation of Obtaining and Using Times Content provides the answer with a section named “May I use portions of New York Times articles, such as quotes or excerpts?”

Under certain circumstances, it is permissible to make direct quotes from New York Times articles. The context, number and length of the quotes will determine whether permission is required…It is always best to submit a request for clearance.
So the answer is “it depends” and you, the website publisher are not qualified to determine what is fair use.

You now have four options:

1. Publish the comment with the quote, though you are now potentially infringing on copyright. Your decision, if different from the copyright holder could stand up in court as fair use, though do you really want to risk it?
2. Remove the quote from the comment, and publish the remainder of the comment. Congratulations, you are now an Internet Censor.
3. You delete the entire post, because you don’t want to seem like you are censoring user comments.
4. Request permission from the New York Times, and see what they say. Who knows how long this will take, since anyone who wants to publish a quote from a New York Times article will now need to ask permission, just to be safe.

You obviously select option four. How long you wait is anybody's guess. Based on the volume of requests, it is possible the New York Times sets objective guidelines (use no more than thirty words, or 2% of the content, whichever is larger) to remove ambiguity, and limit the amount of staff time to make determinations on fair use. Though, they may just as well start charging for requests, or start a subscription service to pay for “fair use” determination in a priority manner.

But, what if, despite your best attempts, you allow infringing content on your website? If someone identifies what they suspect is infringing content, they could provide notice directly to your website host, domain registrar, credit card processor, or ad network, who would need to cease service, or else join you in liability. It would now be up to you to prove your innocence. And if you do, unless the accuser “knowingly materially misrepresented” the accusation, you are barred from suing for damages.

These represent just a few of ways the proposed SOPA and PIPA legislation would affect how website operators will need to approach posting content, especially user supplied content.

At DesignHammer we feel it is important for website owners to be aware
of upcoming legislation that may effect their business. If you have
any questions or concerns about the proposed legislation, we encourage
you to become involved in the process and contact your elected
officials.