Fair use goes out the window, alone with derivative work. Since ISP's have immunity, if they got an order from a company (not the government) to stop HLP they'll enforce it no matter what.
Fair use doctrine and derivative work precedents do not go out the window. They are utterly unaffected by SOPA, and to believe otherwise shows a lack of understanding about what those terms mean. SOPA does not alter the nature of copyrights, trademarks, or patents but rather expands on the methods of enforcement.
Quite. However, there are already problems with fair use and derivative works considering, say, YouTube videos, and that's just under DMCA which enables the copyright holders to start legal proceedings against the hosting company (not ISP) if they don't react to the complaint by removing it or limiting its availability. Note that this is still in the regime of civil courts.
SOPA would move all this to the criminal courts and that step alone is quite a big thing.
Considering that the definition of fair use/derivative work are not exactly the clearest to majority of people, you can bet your ass there will be numerous, numerous claims of copyright violation in cases that would, in fact, qualify as either fair use (parody etc.) or derivative works, but
that won't matter because the ISP's will gain immunity if they react to complaints, whereas they will be held liable if they don't react to complaints.
Much like YouTube, they won't have interest or resources to investigate whether or not the copyright complaints actually have a legitimate reason, they can just pull the plug to avoid lawsuits against them. Clients will actively have to disprove copyright complaints, assuming their ISP even offers such an option.
Moreover, when someone puts media containing copyrighted works (under fair use/derivative work definitions) for hosting, and then their ISP pulls the plug on it announcing that a copyright complaint has been filed on the content - who's going to have the legal knowledge and resources to
a. be certain that the media actually qualifies as fair use of copyrighted work, or derivative work, and
b. have the cojones to clarify the situation with the ISP
Not to mention that you would have to prove this to the ISP, which means the ISP needs to have a legal department prepared and able to handle copyright definitions to confirm that the work indeed does not violate copyrights, contrary to the complaint made by whoever.
The ISP's are not going to put massive funds into such activity. Why should they? They would risk getting sued by those who complained of the media in the first place. Going to courthouse to decide whether a piece of media hosted by the ISP violates copyright or not will be a massive resource drain for the ISP and their client, and since the actual definitions of fair use/derivative work tend to be a bit muddy, it's not a given that the judicial system will even make the correct call on it.
No, the end result is that anyone can make a copyright claim on anything and the ISP's will either take it down or face huge and economically inconceiveable risks from opposing the copyright claim on behalf of their client.
At least, that is my interpretation of what will likely happen. Even though technically the bill doesn't change any definitions of the copyright law itself (which, by the way, would be in far greater need of adjustment than reactive measures in enforcing the copyright law), the effective outcome will significantly change how different aspects of copyright law are handled and by whom.
This will, in my analysis, include significant changes to the viability of fair use of copyrighted materials, as well as derivative works.
Discuss.
