SOPA and PIPA: Bad Ideas

Google blacked out its logo earlier this week to protest two bills currently making their way through Congress: the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA). They’re not alone; many websites went completely black, displaying statements as to why they oppose these bills and often linking to other sites for more information. But the battle’s not over yet.

The ostensible goal of these bills is to prevent “rogue, foreign websites” from infringing on copyrights in the US, and to punish those who break intellectual property laws by downloading pirated content. SOPA and PIPA are supported by the movie and music industries here in the US – specifically, the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA). These organizations are widely known for overreaching to protect their intellectual property, filing excessive lawsuits aimed at illegal downloaders but often catching innocent people. Does anyone truly expect these heavyweights NOT to act abusively if either of these bills becomes law?

The bills themselves were improperly drafted by lawmakers and lobbyists with no real understanding of the Internet. Reddit offers up an excellent explanation of some of these issues in both SOPA and PIPA. They start with the bills’ definition of what constitutes a “foreign” website. The bills give a definition for a “domestic Internet site.” Such a site is one that has a domestic domain name or IP address – and that is defined as a domain registered or assigned by a registrar or other authority located in the US. Foreign sites are simply sites that are not domestic.

Right away there’s a problem. All sites with .com, .net, and .org addresses would be considered “domestic” – even if the site is hosted on servers that are not located in the US. That means wikileaks.org and thepiratebay.org would be considered “domestic,” even though they’re not hosted in the US. Conversely, sites like Redd.it and bit.ly would be considered foreign, even though they’re hosted on servers in the US!

That’s just the beginning of the definition-related issues with these two bills, but for now I’ll spare you the details. Among other things, the bills allow the office of the Attorney General to take action against a “foreign” infringing site (this is why the definition is so important) under certain circumstances. The site has to be directed to a US audience, and has to be used as a means for engaging in, enabling, or facilitating the activities of copyright infringement. The problem is, “facilitating the activities” can be read pretty broadly. Arguably, a site that explains how other sites abuse intellectual property could be painted with this brush.

So what actions can the Attorney General take if one of these bills were passed? There’s a long list, which amounts to requiring US search engines and sites to remove all links to the site, forcing US advertising services to no longer serve ads on the sites, preventing US payment companies (like PayPal) from doing business with such sites, and something called DNS blacklisting. Harold Feld explains why this is not just a bad idea, but a major security risk.

Oh, and remember how misguided the bills’ definition of “foreign” website was? Their definitions of search engines are equally broad, such that many sites with user-generated content (like Reddit) would qualify as search engines.

Here’s an interesting aspect of SOPA: ad networks don’t have a duty to monitor their links, but “search engines” don’t get the same exemption. According to Reddit, “This would mean that search engines can be required to continually monitor and prevent new instances of links to foreign sites.” I rather doubt that even Google could muster the resources to do this. Can you imagine a startup trying to stay in compliance? As Brad Plumer notes, “smaller Web sites getting off the ground probably will find this burden too much to bear – which could, in turn, make it harder for the next generation of YouTubes from ever getting funded.”

It gets worse though. There are provisions in SOPA and PIPA that amount to prior restraint of free speech. Trevor Timm refers to it as the “vigilante” provision, “which would grant broad immunity to all service providers if they overblock innocent users or block sites VOLUNTARILY with no judicial oversight at all. [emphasis in original]” In practice, it’s easy to imagine that the MPAA and the RIAA would write up lists of sites that they don’t like, and give them to service providers to block. And it won’t matter a bit if the sites are engaging in fair use of copyrighted material. If you’re a service provider (and remember how poorly these bills handle definitions) and don’t want to feel the weight of a court order, are you going to look too closely at the sites on a list handed to you by a big organization that says “block these sites and you’ll be immune”? You’re likely to just block them and hope for the best.

The MPAA and the RIAA have claimed that they need this kind of legislation to protect their intellectual property and copyrights. The truth is, they don’t. As Plumer points out, “Copyright holders such as the record and movie industries currently have the legal authority to force sites to remove infringing material under the Digital Millennium Copyright Act’s notice-and-takedown procedures.” And the MPAA and RIAA have abused the power they already have; why should we give them more?

A number of commentators, including law professors, believe that the bills as they stand would stifle free speech. They would also stifle technological innovation due to provisions that potentially place an undue burden on new companies. The next great Google, or YouTube, or Facebook, could never get started if one of these bills passed. This affects everyone who wants to start a business – and everyone who uses sites like these FOR business. So contact your congressman; these bills aren’t dead yet, and the battle isn’t over.

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