The Shakespeare Conference: SHK 23.024 Monday, 23 January 2012
Date: January 22, 2012 3:44:45 PM EST
Subject: SHAKSPER Discussion
Hardy asks what effect PIPA/SOPA would have on academic discussion sites like SHAKSPER. It is hard to see that the proposed legislation would have any effect on them. Of course, it is risky to be too dogmatic about any of this, as the legislation may never be passed and it appears nearly certain that it will not pass in its present form. A redraft will probably water down the harshest provisions, so it is even less likely that the final enactment, if any, will restrain discussion here.
The proposed legislation is directed against the redistribution in this country of offshore “rogue” websites that exist for the purpose of providing pirated copyrighted works (movies, books, music) at wildly discounted prices or giving them away as a means of attracting advertising revenue. The bills provide mechanisms to allow intellectual property owners to obtain orders requiring U.S. sites and even search engines to stop linking to sites whose “primary” purpose is copyright infringement. There is a lot of ambiguity in the current drafts and the potential for unintended adverse consequences to research and open discourse is significant, so any redraft will likely narrow the definitions or what may be prohibited and provide more procedural protections. The difficulty with this is that an overly narrow definition of what can be enjoined and excess solicitude for procedural niceties will inevitably facilitate evasion of the purpose of the law, in other words, “open loopholes.” The balancing act will be very difficult and might be impossible.
In any event, I don’t think that the legislation, even in its present form, would impair open discussion here. It is not necessary, or even desirable, for SHAKSPER to offer access to rogue websites in order to carry out its mission, and I suspect that if anyone attempted to use the site for that purpose, Hardy would quickly put an end to it (with or without a demand). As for inadvertent linking to copyrighted material, that probably occurs now, and, so far as I know, no one has asserted a claim for infringement or contributory infringement. Given the limited distribution on this site and its educational purpose, and (in most cases at least) the minor amount of copyrighted material that might be included in a post, the Fair Use doctrine (17 U.S.C. § 107) could be asserted as a defense.