Stop Online Piracy Act: Powers Granted to the Attorney General

Insights January 5, 2012

As noted in the first piece of this two-part series, the Stop Online Piracy Act’s (“SOPA”) procedures vary depending on whether the Attorney General or a copyright holder initiates the process. This article looks at the possible course of action when initiated by the Attorney General.

SOPA permits the U.S. Attorney General to take action against “foreign infringing sites”

Where SOPA provides copyright holders with a right of action against sites “dedicated to the theft of U.S. property,” the Attorney General may take action against a “foreign infringing site.”

A “foreign infringing site” is defined as an Internet site which is at least partially directed to the U.S., is used by U.S. users, and commits or facilitates violations of: trafficking in counterfeit labels, goods, or services, or copyright infringement (including unauthorized recordings of live musical performances and motion pictures). Lastly, the Internet site’s actions must be sufficient to expose it to seizure in the U.S. if it were a domestic site.

The Attorney General may commence in personam actions against the domain name registrant, an owner or operator of the site, or in rem against the site or domain name.

Injunctive relief to prevent the site from “undertaking any further action as a foreign infringing site” is available upon commencement of an action under SOPA.

The Attorney General can limit access to foreign infringing sites through ordering service providers and Internet search engines to take action
Where copyright holders can only affect payment network providers and Internet advertising services, the Attorney General may, in addition, order service providers and Internet search engines to take certain actions.

After acquiring a court order, the Attorney General may require service providers to take “technically feasible and reasonable measures” which “prevent access” to the allegedly infringing site. Moreover, such measures must include a way to prevent the site’s domain name from resolving to that name’s Internet protocol address.

A court order may also require Internet search engines to prevent the site from being served as a direct link.

Ease of circumvention
These methods seem designed to prevent users from accessing the site; however, as many of SOPA’s opponents point out, these measures do not prevent users from navigating to the site if they possess its Internet protocol address. For example, assume that Google is found to be a “foreign infringing site.” Entering [url=http://www.google.com/]http://www.google.com/[/url] into a web browser will not provide access to the site under SOPA, but entering [url=][/url], or one of Google’s other Internet protocol addresses, will grant access. Further, Internet users may simply search for the site’s Internet protocol address if they do not already have it.

It is not farfetched to think that the people who know how to download media through various sources such as torrents, will also know how to reach infringing sites with their Internet protocol addresses; however, the lay user who may not have such experience would be more likely to be inhibited by these measures.

Intellectual property owners must certainly have the means to protect their work. Whether SOPA is the right answer to the question of piracy, though, remains to be seen.

UPDATE: January 13, 2012 – SOPA’s backers have announced that they plan to remove the DNS provisions from the bill. While the planned removal impacts this article’s analysis, the article will remain unaltered so as to document SOPA’s ever changing state.