Wikipedia blackout - a UK lawyer's perspective
Posted: Wednesday 18 January 2012
SOPA and the Wikipedia blackout – A UK lawyer’s perspective
Wikimedia, the Foundation responsible for Wikipedia has today taken the unprecedented step of implementing a 24 hour “blackout” of the Wikipedia website in protest at proposed new anti-piracy laws in the US. The protests are aimed at two bills – the Stop Online Piracy Act (SOPA) and the Protect-IP Act (PIPA) presently under consideration by Congress.
In November, other internet companies including Google, Facebook, Twitter and Ebay issued a joint letter expressing opposition to SOPA and last week the European Parliament adopted a resolution which “stresses the need to protect the integrity of the global internet and freedom of communication by refraining from unilateral measures to revoke IP addresses or domain names”.
Much has been written about the rights and wrongs of SOPA and I’m not sure that, speaking as a lawyer who advises both IP rights holders and businesses setting up websites, I’m best placed to give an unbiased view.
What I will offer are some very preliminary thoughts as to what I’d tell a UK website operator concerned about compliance if SOPA became law tomorrow.
What’s the risk?
We were told back in Constitutional law classes that it would be competent for the UK Parliament to ban smoking on the streets of Paris, but that it could never be enforced. Attempting to regulate foreign internet sites under US domestic law might seem similarly doomed, but that is what SOPA and PIPA attempts via novel and controversial new measures.
SOPA and PIPA would allow US authorities (and potentially, under the current draft of PIPA, copyright holders) to indirectly target foreign websites which breach certain provisions of US copyright law by obtaining a court order compelling third parties such as Google and Paypal to delist the site from search engine rankings, withdraw payment processing facilities and advertising revenue from their sites; and by requiring U.S Internet Service Providers to block US surfers from accessing the sites in question. Given the dependence of most websites on search engine traffic and advertising revenue, it seems likely that implementing these measures could amount to a virtual death sentence for many websites.
Who are the potential targets?
1 Existing programmes by the US Government involving the seizure of .com addresses have principally targeted websites which are alleged to have sold counterfeit goods. However, other targets have included a number of music blogs which posted leaked tracks (often allegedly leaked by industry insiders) and a Spanish sports related website which allegedly infringed US copyright by linking to online streams of sporting events.
Sites allowing users to post their own materials or to trade/sell goods face potentially enhanced risks due to the lack of control over user generated material.
2 It’s been widely reported that only websites with a domain name from a top-level domain assigned by an entity outwith the U.S are caught by SOPA powers (i.e. sites with .uk addresses, which are administered from the UK by Nominet, would be impacted, but not .com or .org sites). It therefore wouldn’t surprise me to see new website operators who perceive themselves to be moderate/high risk from a SOPA perspective opting for a .com address to try to sidestep SOPA issues. However, I think that a foreign registered and operated .com or .org site could potentially caught, even under the latest amended version of SOPA as an “internet site dedicated to theft of U.S. property”.
3 Websites which do not offer any US service may potentially be able to place themselves outwith the scope of SOPA. For websites selling goods, this could simply involve not offering goods for sale to the US market. However for online services implementing an effective block on US citizens accessing the service can be technically difficult (or some would say, impossible). This will be concerning for UK-based online service providers as the only US connection required for an “internet site dedicated to theft of U.S. property” is that the site is used by users within the US, meaning that a service which implemented blocking could still be subject to SOPA if US users circumvented those measures.
Further information
For those interested in reading the latest draft of SOPA as at the date of writing (known as the “manager’s amendment”) for themselves it can be found here.
To discuss this article further, please contact Sam Price, Associate
