Hello and welcome to the BRR Legal Brief, where we bring you the latest legal issues affecting corporate Australia. Today we’re looking at the controversial Stop Online Piracy Act, which lost support last week following mass protest. Joining us to discuss is Alec Christie who’s a Partner in the Intellectual Property and Technology Group at DLA Piper, Alec welcome.
Thank you Kate.
Well Alec the controversy surrounding this Bill was massive. It culminated in sites blacking out, including Wikipedia, why was it causing such a stir?
Well look if you believe the opponents of this Bill SOPA then it will break the internet. It will stifle innovation; it will destroy the very things that the internet stands for. Affectively what it is trying to do at the pushing and behest of content providers, the music industry, the film and TV industry, is to reassign or realign the liability and responsibility for copyright infringement. They say they shouldn’t have to go after individual users, they should be able to approach ISPs and search engines and stop piracy; a good sentiment. The problem is that the way that it has been drafted and structured it’s very broad, it’s problematic, sites and its targeting foreign sites, but sites that are inadvertently infringing could be caught up with this and the process is such that an order can be got very quickly, it’s a fast track process if the Bill goes through. The site could be told – could be an order made against it and in effect any US search engine, internet advertising company or payment network must cease either showing that in search results, making payment facilities available or advertising it. So in effect given that the US controls a significant amount of the internet you’re blacked out from the internet and thus the reference to the blacking out of Wikipedia.
And if we look to Australia, why should Australian businesses be concerned about US legislation?
Well it’s very much US legislation targeted at foreign sites. So if you’re an Australian pirate of course you’ve got worries, but even if you’re not a pirate, if you’re an Australian site that has US customers, US users, hosted in the US or any other connection, if an order was got and it’s a fast track procedure where you get limited opportunity to put your case, what happens is you’ll be you know ordered to be shut down and taken away from search engines, in effect until you take an action to get put back on. Now the cost of that, the time delay could be fatal to a business, being off the internet for three months could end that business, and Australian businesses you know are at risk just as any other foreign site.
And in Australia we have, at the moment, the high profile internet case between AFACT and iiNet; do you think that following the decision in the High Court we could see a push for similar legislation in Australia?
Well we don’t know what the decision in the High Court will be yet, we can guess, but I think the Attorney-General’s office have come out about SOPA already and said that their preferred model is to have industry codes which govern this sort of thing and if we go back to iiNet, it’s more about our safe harbour provisions, it’s more about what steps have to be taken by ISPs to get the benefits of those protections and what they should realistically be doing. So if I was a betting man, and I would say that I think based on Australian precedent, what will happen is if there are any legislative changes, they will tweak what an ISP has to do under the safe harbour provisions to get those protections, in other words they will make them more onerous or be more prescriptive as to what has to happen; rather than a wholesale bill such as SOPA.
Just moving back to SOPA, if it is to continue, can you think of any changes that might need to be made?
Yeah look I think the official phrase is it’s been indefinitely shelved, coming out of US Congress and the US Senate, I don’t know whether that’s code for it will never rise again, I suppose never say never. I think given the overwhelming response of internet users and businesses other than the music and film industry, I think you’d have to say that it would not come back in any way near its current form, it would be watered down, it would be significantly revised. And look I think as I was saying with the iiNet case, they may come at it at a different angle. The US has safe harbour provisions as well and maybe they’ll come at it by looking at those and strengthening the requirements to get the benefits of the protection. Because I think anybody except with a vested interest would say that SOPA was an overreaction.
Well it’s certainly an interesting space.
And definitely one that everyone has a close eye on. Thank you for joining us today.
And viewers thank you for joining us, we hope that you can join us for next week’s Legal Brief.