Can I Buy a Fact?

Gary Shapiro, President of the Consumer Electronics Association, jumped on the misinformation bandwagon with a blog yesterday that appears to have been posted before a House bill was even introduced.  He shepherded a group of Silicon Valley venture capitalists around the Hill today on a CEA sponsored lobbying campaign against the Stop Online Piracy Act and the PROTECT IP Act.  We hope those meeting with the group take a few moments to read the legislation. Mr. Shapiro’s hyperbole, while dramatic, is just not based in fact.

A reality check is in order…

Shapiro asserts “the bill is so broadly written that, in theory, it would allow any copyright owner to shut down a legitimate retail website, such as Amazon or Best Buy, by alleging that one product being sold on the site could enable or facilitate infringement.  It could even allow any content owner to block access to the Patent Office website if it receives and posts a patent application for a product that is believed to use content without permission.”

Amazon, Best Buy and the Patent Office can rest easy.  Both the House and the Senate bills narrowly target sites dedicated to infringement.  The Senate bill defines such sites as ones that have “no significant use other than” engaging in, enabling or facilitating infringement.  The House bill, defines such sites as ones that are “primarily designed or operated for the purpose of, has only limited purpose other than, or is marketed by its operators for …" infringement.   These definitions should be familiar ones to the CEA, seeing as they are derived from the Supreme Court decision in the Betamax case (which established the test for determining a staple article of commerce from an infringing product), and were used in the DMCA as well.  Indeed, Amazon and Best Buy came to life online as a result of these tests being in place. As for the Patent Office being “taken down” by copyright owners – that suggestion just doesn’t even pass the giggle test.

Shapiro likewise threatens that “The [bills] would allow copyright owners …simply to accuse a website of infringement, which could lead to that site being shut down … “

First, neither bill allows copyright owners to shut down sites.  The bill allows the Attorney General to seek the aid of payment processors, advertising services and search engines to make sites dedicated to theft less profitable to operate, and harder to access.

With respect to the limited right afforded to copyright holders to ask payment processors and internet advertising services to stop supporting a site dedicated to theft, the process is far from “simple” and it contains numerous protections to ensure that legitimate websites are not affected, and that legitimate intermediaries like payment processors and online advertising networks are not overburdened.  Specifically: