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SOPA – What You Need to Know Today

Today you’re going to see lot of Facebook and Twitter updates regarding the politics surrounding internet privacy. As your network of friends, loved ones, co-workers, and industry leaders start throwing around terminology such as “SOPA,” and “PIPA,” you may be asking yourself what it all means. How does all this censorship hype affect me? Here is a digestible guide to navigating today’s internet censorship protest.

There is a bill in the House of Representatives (and a slightly different version in the Senate, PIPA) that some say would make the US government “internet censors.” The bill is called the Stop Online Piracy Act, or SOPA. For those who have no idea what it is, here are a few good articles that break it down How SOPA Would Affect You: FAQ [1]; Stop Online Piracy Act [2]; SOPA, HR 3261 [3]; or search for #SOPA on Twitter. SOPA is surprisingly short and easy to read. Its main intent is to stop the dispersal of pirated content on foreign websites that are not subject to the stringent copyright laws of the United States.

Recently, due to public outcry, the bill has been amended to remove the DNS filtering requirements contained in Section 102. The bill itself has been shelved by the House until a consensus can be reached on the language (Controversial Online Piracy Bill Shelved until ‘Consensus’ is Found [4]). The White House has also stated that it will not support SOPA or PIPA (the Senate’s version of SOPA), stating, “We will not support legislation that reduces freedom of expression, increases cyber security risk, or undermines the dynamic, innovative global Internet” (White House Will Not Support SOPA, PIPA [5]). However there is undeniable controversy concerning the bill’s language (especially since they will have to agree on it to pass it), so the opponents and proponents arguments follow below, along with my score as to who wins.

Top 3 Issues of SOPA

1. It Promotes Censorship

An effect of SOPA could be the suppression of free speech, guaranteed under the First Amendment. Two legal scholars have spoken out on either side, Floyd Abrams [6] and Laurence H. Tribe [7]; an excerpt of their argument is below.

Opponents: Section 103 allows a private party to file a unilateral notice accusing a site, or portions thereof, of being “dedicated to the theft of US property.” This notice has the power to stop online advertising from appearing on, and financial transactions being paid to, the alleged infringing site, without a court finding copyright infringement and without due process or prior notice. This “delegates to a private party the power to suppress speech…” (The “Stop Online Piracy Act” (SOPA) Violates the First Amendment), and is in clear violation of the First Amendment. And, because of the immunity clauses in the bill, the financial services companies and the internet advertising companies would be quick to follow the notice requirements, causing financial harm to the alleged infringing site before it has time to refute the charges.

Proponents: SOPA is in accordance with Rule 65 of the Federal Rules of Civil Procedure, which applies the procedural protections that federal law affords all civil action litigants and thus, does provide due process and notice. Also, Section 103 is a private right of action that is limited in scope and doesn’t allow for orders to be served on service providers or search engines. Thus, the only impact on a site would be financial. (Letter to Chairman Lamar Smith, 11/7/11 [8]). As to the final point, SOPA has provisions (Section 103(b)(6)) holding the complaining party liable for any misrepresentations, which could result in the payment of attorney’s fees and damages by them to the harmed business.

The potential in any bill for vague language to be exploited and misused should not be ignored and should be addressed before the bill becomes law.

2. Stifles Innovation

Opponents: Fear of being shut down by a SOPA order would cause websites to avoid having dialogue with other websites, either by linking to third party content or linking to other websites’ content, thereby stifling communication and innovation on the internet.

Proponents: SOPA encourages innovation and investment on the internet because it protects copyrighted material and allows businesses to be innovative without the fear that all of their work will appear for free on a rogue site. And, according to Michael O’Leary, SVP of Global Policy and External Affairs of MPAA, “It does nothing to add to the burden of companies that are engaged in legal activity.” (Stop Protecting Criminal Behavior [9])

Proponents’ underestimate the power of fear – the fear of financial damage and of litigation is enough to make even the most risk-taking of businesses think twice about violating this law.

3. Overly Broad Reach

Opponents: Section 103 covers websites that are US-directed, but doesn’t mention foreign sites anywhere in its language or definitions. The potential scope of this language opens up copyright infringement claims, and therefore potential censorship by private parties, to all websites that are US-directed, which is in violation of the constitutional requirements of “narrow tailoring” (a law must be narrowly tailored to achieve its goal) and suppresses free speech. It also could be used to target an entire site, when only one of the pages of the thousand available contains infringing content or links.

Proponents: The definitions in the bill are very specific – SOPA only applies to foreign sites. It would not be used against US-owned sites, because they are under the protection of US copyright laws and the safe harbor protections of the DMCA (Digital Millennium Copyright Act, which covers digital copyrights in the US).

The fact that US businesses, who are not foreign sites, could be targeted by this bill because of the broad language in it is just not acceptable.

On the strength of the arguments above, it’s fairly clear that this is a major issue facing the US.  However, the potential for First Amendment abuses and the possible exploitation of vague language to the detriment of US businesses is too strong to be ignored. While protecting companies and copyrights from pirating is necessary in today’s market, doing so at the expense of free speech and a working internet is just not okay.