SOPA, PIPA, ACTA, TPP: An Alphabet Soup of Innovation-Stifling Copyright Legislation and Agreements

Abstract:     
In the past few years, proposed copyright legislation and trade agreements have received significant attention. Critics have attacked the secrecy with which trade agreements are negotiated behind closed doors. And they have pointed out concerns with legislation including censorship, a lack of due process, and compromised Internet security. But the effect of these developments on innovation has not received sufficient attention. This article addresses this gap.

The article discusses the effects of four copyright proposals on innovation: the Stop Online Piracy Act (SOPA), PROTECT IP Act (PIPA), Anti-Counterfeiting Trade Agreement (ACTA), and Trans-Pacific Partnership Agreement (TPP). These proposals contain provisions that would impose copyright liability in a vague and far-reaching manner that would harm innovators, dissuade venture capitalists, and ultimately stifle innovation.

In particular, the “aid or abet” and “enable or facilitate” standards are far less predictable than existing U.S. law. In nearly every conceivable setting, they would prevent summary judgment, as startups could not disprove all factual disputes relating to these expansive concepts. And they would allow copyright holders to employ litigation as a potent threat to thwart innovators.

The adoption of such language also would prevent services from taking advantage of the Sony noninfringing-use test and would move in the opposite direction of the Cablevision and DMCA safe harbors that have fostered innovation. In short, any government policy concerned with innovation should not include such vague standards.

Number of Pages in PDF File: 14

Keywords: copyright, innovation, secondary liability, Stop Online Piracy Act (SOPA), PROTECT IP Act (PIPA), Anti-Counterfeiting Trade Agreement (ACTA), Trans-Pacific Partnership Agreement (TPP)

JEL Classification: L82, O31, O33, O34, O38

Accepted Paper Series