Business Software Alliance Backpedals On Piracy Bill

by Wendy Davis, Nov 23, 2011, 4:32 PM

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The controversial Stop Online Piracy Act lost some key support this week when the Business Software Alliance said that “much work” remains to be done on the proposal.

The Business Software Alliance -- which includes Microsoft, Apple and other tech companies --  initially supported the legislation, calling it a “good step to address the problem of piracy.”

But BSA president and CEO Robert Holleyman said this week in a blog post that a recent House Judiciary Committee hearing about the measure gave him pause. “It is evident from what I heard that much work remains ahead for the Committee,” he wrote.

“Valid and important questions have been raised about the bill. It is intended to get at the worst of the worst offenders. As it now stands, however, it could sweep in more than just truly egregious actors,” he added. “Due process, free speech, and privacy," he wrote, "cannot be compromised.”

The measure provides for court orders banning ad networks and payment processors from doing business with “rogue” sites -- defined as sites dedicated to infringement. The measure also could result in court orders banning search engines from returning certain results and orders prohibiting Internet service providers from putting traffic through to certain URLs. (Even if ISPs did so, users could still reach their destinations by typing in the numeric IP addresses.)

Hollywood backs the bipartisan bill, arguing that it's needed to stop companies who are outside the jurisdiction of the U.S., and therefore need not comply with the Digital Millennium Copyright Act's take-down provisions.

But many digital rights groups, law professors and others argue that the bill is problematic. They say the bill would violate due process because it would allow for court orders that could harm sites without first guaranteeing that the operators have a chance to tell their side of the story. 

Critics also say the bill could discourage companies from hosting user-generated content. That's because the measure could effectively curb provisions of the DMCA that protect companies from liability when users' posts infringe on copyright. Currently, the DMCA's safe harbors provide that Web companies are immune from liability for infringing clips posted by users, provided the material is removed at the owner's request. But opponents say that the bill could require sites to more actively police user-generated content for infringement.

The measure says that a site can be considered dedicated to infringement if it avoids confirming that users probably are uploading pirated material. If social networking sites are viewed as likely to host pirated material, then the operators of those sites could be forced to start proactively policing posts in order to avoid being labeled a rogue site.

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