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Chapter 3
69 (Feb. 16, 2011) (available at http://www.gpo.gov/fdsys/pkg/CHRG-112shrg67443/pdf/CHRG-
112shrg67443.pdf) (“It is critical, above all, to remove two impediments to private causes of action. . . .”).
5. See generally the Civil Remedies section of this White Paper. Although Italian and Spanish governmental
authorities have also obtained site-blocking orders against ISPs in criminal contexts in their respective
countries, the overwhelming majority of enforcement activity against intermediaries in Europe has been obtained
by private plaintiffs in civil proceedings. Id.
6. See, e.g., Michael L. Rustad, “Private Enforcement of Cybercrime on the Electronic Frontier”, 11 S. Cal.
Interdisc. L. J. 63, 66 (2001) (available at http://www-bcf.usc.edu/~idjlaw/PDF/11-1/11-1%20Rustad.pdf,)
(“Law enforcement resources in cyberspace cannot keep pace with sophisticated cybercrime subcultures in
anonymous offshore havens. As soon as Internet-related criminal statutes are drafted, cybercriminals employ
new software tools to attack computer systems. The expanded use of private ‘cybercops’ and ‘private attorneys
general,’ whose efforts in prosecuting a private suit for an individual client or class of clients also benefits the
public, will have to fill the enforcement gap in preventing and punishing wrongdoing on the electronic frontiers.”).
7. See, e.g., Mark A. Lemley & Eugene Volokh, “Freedom of Speech and Injunctions in Intellectual
Property Cases”, 48 Duke L.J. 147, 185 & n.176 (1998) (citing New York Times Co. v. United States, 403 U.S.
713, 731 n.1 (1971)).
8. See, e.g., Brian T. Yeh, Congressional Research Service R42112, “Online Copyright Infringement and
Counterfeiting: Legislation in the 112th Congress,” 23-24 (Jan. 20, 2012) (available at http://
www.kelleydrye.com/email/PIPASOPAandtheOPENAct.pdf). Yeh’s paper describes two particular concerns
that were raised. The first, raised primarily by open internet groups like the Electronic Frontier Foundation
(EFF) and the Center for Democracy and Technology (CDT), was that content owners would use the private
rights of action provided under SOPA and PIPA to “stifle Internet innovation and protect outdated business
models”. Id. at 23 (citing Abigail Phillips, “The ‘PROTECT IP’ ACT: COICA Redux,” The Electronic Frontier
Foundation (June 20, 4:31 p.m.) (available at https://www.eff.org/deeplinks/2011/05/protect-ip-act-coica-redux)
(wondering whether Viacom would have quashed YouTube had the bill been law at the time)). The second
concern, raised primarily by the affected intermediaries themselves, was that the bills would result in a flood of
suits by content owners that would overwhelm them and force them to pass on the resulting increased costs to
consumers. Id. at 23, 127 (citing Letter from American Express et al. to Sen. Patrick Leahy, Chairman, Senate
Judiciary Comm. (May 25, 2011) (previously available at http://www.publicknowledge.org/letter-opposing-
PIPA-privaterightofaction) (stating that “We believe that the currently proposed private litigation-based process
will, however, unintentionally, become a one-side litigation machine with rights owners mass-producing
virtually identical cases against foreign domain names for the purpose of obtaining orders to serve on U.S.
payment and advertising companies”). As Yeh’s paper reports, proponents of the private rights of action
responded to the first concern by pointing out that neither PIPA nor SOPA would have allowed private plaintiffs
to block domain names or websites like YouTube’s, and responded to the second concern by arguing that the
tools provided to private plaintiffs under the bills were really quite limited. Id. at 24 n. 131 (citing H.R. 3261, the
“Stop Online Piracy Act”: Hearing Before the H.Comm. on the Judiciary, 112th Cong. (2011) (written statement
of Maria Pallante, Register of Copyrights)).
9. See Jack C. Schecter, “Online Piracy Legislation—A Cure Worse than the Disease?,” Sunstein Kann
Murphy & Timbers LLP Intellectual Property Update (Jan. 2012) (available at http://sunsteinlaw.com/onlinepiracy-legislation-a-cure-worse-than-the-disease/);
Mike Masnick, “How SOPA 2.0 Sneaks In A Really
Dangerous Private Ability To Kill Any Website,” TechDirt (Dec. 16, 2011) (available at http://www.techdirt.com/
articles/20111216/03275317104/how-sopa-20-sneaks-really-dangerous-private-ability-to-kill-any-website.html);
Patrick McKay, “SOPA, Private Copyright Enforcement Systems, & Free Speech,” Fair Use Tube (Jan. 19,
2012) (available at http://fairusetube.org/articles/23-private-copyright) (arguing that the private right of action
provisions are the most dangerous provisions in SOPA and PIPA because of the immunity they provide to
intermediaries for voluntary actions).
10. See supra, Chapter 2: Civil Remedies.
11. Id.
12. The relevant provisions of PIPA and SOPA were §4(e) and §103(d)(4), respectively.
13. See supra, Chapter 2: Civil Remedies.
14. In the case of SOPA/PIPA, rightsholders who prevailed against an accused foreign rogue site were only
permitted to serve the resulting cease and desist orders against payment processors and advertising network
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