November 9, 2011 2 Comments
Recently, the Stop Online Piracy Act, 112 HR 3261 (SOPA) was introduced as a bill in the US House of Representatives. This is the House companion to the Senate Protect-IP Act that drew considerable opposition from the tech and First Amendment quarters, so many of the issues remain same. The intent of SOPA is to help combat online piracy. This is a laudable goal; however, the unintended consequences are scary for intermediaries, websites with user generated content, DNS providers, and those of us who rely on the Internet as a vibrant and rich communications network.
SOPA grants IP claimants a lot more power than they currently have to remove allegedly infringing content and expands the scope of people who may be liable by giving:
- the Attorney General the power to compel companies that maintain DNS look-ups to change the tables, also known as domain name filtering. See analysis by Larry Downes.
- IP owners the power to require ad services and payment processors to stop doing business with a site by giving it notice that the site contains allegedly infringing content. See Public Knowledge’s analysis by Rashmi Ranganth.
- the Attorney General injunctive relief power over anyone who allegedly circumvents copyright protections, and anyone who aids in the circumvention. See Public Knowledge’s analysis by jgraham.
The problem is that these are powerful remedies made available based upon unproven assertions and little due process. Imagine you’re a website operator, under SOPA you can get your Paypal payment processing services cut-off merely because someone claimed there’s infringing content or apps on your site. Faced with that choice, it’s an easy decision, remove the content early and often just to be safe.
IP rights are certainly important and need to be respected on the Internet, and there is a very real piracy problem, but SOPA threatens an essential attribute of the Internet – its ability to easily share information without friction and permissions. This doesn’t mean that the Internet should be a lawless expanse void of law or consequences either. The challenge is that SOPA exposes intermediaries to undue financial and legal liability for content in a way that will undoubtedly chill the free flow of content and ideas embodied in both software and media. In addition, the language in the bill is ambiguous leaving it open to abuse by plaintiffs who have already demonstrated aggressive interpretations of the existing DMCA framework. This is why there is so much concern that SOPA represents a real and dangerous threat to the Internet.
Some describe this debate in polemic terms, as Hollywood vs. the Internet, where the Internet slowly becomes managed by dominant media interests. Others have focused on the deleterious impact on human rights. Perhaps Masterswitch writer Tim Wu would see this as part of a larger pattern of how open information ecosystems become closed over time. US House Representative Zoe Lofgren, representing voters in Silicon Valley, warns that this “would mean the end of the Internet as we know it.” It could also just be bad legislation.
If SOPA becomes law, few think it will actually solve the problem. For example, it seems clear that blocking domains is not an effective means to combat piracy because domains can be redirected so easily. A while back Homeland Security asked Mozilla to take-down an add-on without a court order or a finding of liability. Under a SOPA regime, it appears the same incident would allow the putative plaintiffs to petition the Attorney General to issue an injunction compelling take-down based only on a specious claim of contributory infringement. Oddly SOPA makes one really appreciate the DMCA.
Many in the tech and policy communities are organizing to oppose SOPA. What’s most important is that Congress hears from everyone on this, whatever their view. Plus it’s Tuesday November 8th -voting day- so let your voice be heard. If you want to let Congress know that you oppose the legislation EFF and Public Knowledge have sites set up to easily send your message to Congress.
Additional links to the bill and other commentary can be found below.