In honor of today’s web strike against two pending U.S. bills in Congress, namely the Stop Online Piracy Act (“SOPA”) in the U.S. House and the Protect IP Act (“PIPA”) in the U.S. Senate, I thought I write a little about how those bills would endanger legal content provider market in particular. The uninformed would be forgiven for thinking these bills would not impact the publishing of legal information because much of that information comes from the government and is not copyrighted — but you would be very wrong.
First, there are numerous situations in which the the public domain status of many government documents is not clear, examples include Arkansas’ publishing its laws electronically only through a commercial publisher, claims of copyright made by creators of model laws, as well as the copyrightability of foreign laws, pagination, digitization, copyrighted material republished by the government (e.g., in an appendix to a decision), documents produced by government contractors and many similar issues. One of the major problems with bills like SOPA and PIPA is that they assume copyright is obvious. Someone may claim a copyright over something but that doesn’t resolve many open questions and doesn’t even begin to deal with the situation in which an accussed infringer claims fair use. These problems have always plagued copyright law but these issues become devestating when combined with remedies that do not allow due process or impose liability for linking to infringing material. In short, even information most people assume to be safe from infringment claims (state codes, bills, court opinions, etc.) would not be safe.