Tomorrow the House Judiciary Committee will vote on HR 3261, the Stop Online Piracy Act, which would give intellectual property right holders and the Department of Justice new weapons to use against websites that host infringing content.
The legislation is supported by companies relying on intellectual property and their trade associations, but it is opposed by a wide array of other interests, including internet service providers, advocates of free speech, consumer groups, and copyright experts. The bill would lead to censorship and greater monitoring of people’s internet use, which a majority of Americans oppose.
A survey of SOPA warnings and criticisms follows.
Opposition from American public
A recent survey by Joe Karaganis at Columbia University found that “Solid majorities of American internet users oppose copyright enforcement when it is perceived to intrude on personal rights and freedoms. 69% oppose monitoring of their internet activity for the purposes of enforcement. 57% oppose blocking or filtering by commercial intermediaries if those measures also block some legal content or activity.”
Opposition from businesses
The founders of Google, Netscape, Firefox, Twitter, Flickr, Yahoo!, LinkedIn, Huffington Post, YouTube, Internet Archive, PayPal, Craigslist, eBay, Wikipedia, and Blogger have run a full page ad in most major newpapers warning that SOPA threatens to “require webservices… to monitor what users link to or upload. This would have a chilling effect on innovation; deny website owners the right to due process of law; Give the U.S. government the power to cnesor the web using technologies similar to those used by Chinak Malaysia and Iran; and Undermine security online by changing the basic structure of the internet.”
The Internet Commerce Association sent a letter to House Judiciary Chairman (and sponsor of SOPA) Lamar Smith, warning that “SOPA may have an unintended but nonetheless devastating impact upon domain name registrars and other intermediary companies that participate in the domain name industry, and may also impose excessively burdensome and intrusive registrant monitoring responsibilities that will result in substantial cost increases in the pricing of domain name registrations and renewals as well as many other domain-related services. In addition, the collateral impact upon the domain registrants that our industry serves may be severe in many cases, resulting in extreme disruption of the Internet-based economy.”
Kaspersky Labs quit the Business Software Alliance (BSA) over its support of SOPA. In a blog explaining his decision to leave the BSA, CEO and Founder Eugene Kapersky wrote: “If we accept this law, hundreds of thousands of lawyers will suddenly appear out of the woodwork because almost any website can be accused of copyright infringement! This law will lead to major legalized extortion.”
However, the BSA’s support of SOPA is lukewarm, at best. Its president wrote in a blog that “Valid and important questions have been raised about the bill. It is intended to get at the worst of the worst offenders. As it now stands, however, it could sweep in more than just truly egregious actors. To fix this problem, definitions of who can be the subject of legal actions and what remedies are imposed must be tightened and narrowed. Due process, free speech, and privacy are rights cannot be compromised. And the security of networks and communications is indispensable to a thriving Internet economy. Some observers have raised reasonable questions about whether certain SOPA provisions might have unintended consequences in these areas. BSA has long stood against filtering or monitoring the Internet. All of these concerns should be duly considered and addressed.”
Jim Fructerman, President of Benetech, has posted on Benethech’s blog that his company is “very worried that our organization and the people we serve: people with print disabilities (i.e., people who are blind or severely dyslexic), and human rights groups will be collateral damage in Hollywood’s attempt to break the Internet in their latest effort to squash ‘piracy’.”
Last month, the Consumers Electronics Association put out a press release warning against collateral damage to innovation from SOPA, saying “CEA supports strong measures against foreign ‘rogue’ websites dedicated to infringement. But any legislative approach must target bad actors without ensnaring legitimate companies, and impose effective sanctions. SOPA, as written, fails on both counts. Instead, the bill attempts a radical restructuring of the laws governing the Internet. It would undo the legal safe harbors that have allowed a world-leading Internet industry to flourish over the last decade. It would expose legitimate American businesses and innovators to broad and open-ended liability. The result will be more lawsuits, decreased venture capital investment, and fewer new jobs.”
Opposition from academics
Law Professors Mark Lemley, Dave Levine and David Post sent a letter to the House of Representatives last month raising constitutional and policy problems with SOPA (following their letter signed by 100 other law professors highlighting the same concerns over the bill’s Senate counterpart). The letter warns SOPA would “Redefine the standard for copyright infringement on the Internet, changing the definition of inducement in a way that would not only conflict with Supreme Court precedent but would make YouTube, Google, and numerous other web sites liable for copyright infringement; Allow the government to block Internet access to any web site that ‘facilitated’ copyright or trademark infringement – a term that the Department of Justice currently interprets to require nothing more than having a link on a web page to another site that turns out to be infringing; Allow any private copyright or trademark owner to interfere with the ability of web sites to host advertising or charge purchases to credit cards, putting enormous obstacles in the path of electronic commerce; [and] it would do all of the above while violating our core tenets of due process. By failing to guarantee the challenged web sites notice or an opportunity to be heard in court before their sites are shut down, SOPA represents the most ill-advised and destructive intellectual property legislation in recent memory.”
James Alworth writes in the Havard Business Review blog that “the Digital Millennium Copyright Act (DMCA), introduced over a decade ago and designed to balance IP rights with the technology innovation that has boomed in the US, is being modified to the point of being lopsided. Previously, if a rights holder believed a site was infringing content, they could send a takedown notice and the content would be removed or the takedown could be contested. But the E-PARASITE update is outrageous. Payment providers (Paypal, Visa, Mastercard) and ad networks would be required to terminate services to any site upon receipt of a letter merely alleging that the site is “dedicated to the theft of US property.” In short, rights holders can turn the funds off something they don’t like, and the funds won’t turn back on until after it has gone through the courts. In the meantime: no income. Imagine that every time somebody was sued, they stopped receiving paychecks. That would make it kind of difficult to find the money to pay their lawyer, right? That is what this bill would do.”
Constitutional scholars Laurnce Tribe and Marvin Ammori have written a letter to Congress and a blog arguing that “The bills are not limited; they’re sledgehammers not scalpels. They do not, as often advertised by the copyright industry, merely target foreign ‘rogue’ sites like the Pirate Bay. They are not even limited to sites guilty of ANY copyright infringement, direct or even contributory infringement. Instead, the bills would extend not only to foreign but also to domestic websites that merely “facilitate” or “enable” infringement. Thus, in their language, the bills target considerable protected speech on legitimate sites such as YouTube, Twitter, and Facebook. The bills also affect non-infringing speech by search engines, advertisers, and domain name providers.”
Opposition from civil society groups
Sherwin Siy from Public Knowledge recently wrote a blog describing how SOPA’s sponsors’ manager’s amendment fails to alleviate concerns about the bill. Excerpt – “Bottom Line: Despite several changes, the heart of SOPA remains after the manager’s amendment. It still encourages DNS blocking, which is at the core of the cybersecurity and global Internet freedom concerns with the bill. It still grants immunity to intermediaries (even more of them, now) who decide of their own accord to shut down people they think might be pirates. A bill that starts with these provisions isn’t going to do any good for the Internet, or even for rightsholders, and isn’t fixing some of SOPA’s biggest problems.”
Corryn McSherry, Intellectual Property Director of the Electronic Frontier Foundation wrote in a blog describing the versions of SOPA with and without the new amendment, and concluded that “both bills would still result in the censoring of non-infringing speech… the bills allow the government to obtain blocking orders without an adversary proceeding, which means that the right of U.S. citizens to receive information from abroad would be denied, without any real test of the merits of the infringement claim… the bills would impermissibly regulate the speech of advertisers, search engines and DNS providers… by allowing injunctions against tools that could be used to circumvent the blocking orders, SOPA could be used to target any number of sites that are merely providing technical information.”
Julian Sanchez from the CATO Institute has written a blog on how the managers’ amendment does not change the fact that censorship is at the core of the legislation: “the original proposal was so profoundly wretched that you can improve it a great deal, and still have a very bad idea. This is still, as many legal scholars have correctly observed, censorship by slightly circuitous economic means. The involvement of a judge should (knock on wood) weed out the most obviously frivolous complaints, but it still makes it far too easy for U.S. corporations to effectively destroy foreign Internet sites based on a one-sided proceeding in U.S. courts. These changes are somewhat heartening insofar as they evince some legislative interest in addressing the legitimate concerns that have been raised thus far. But the problem with SOPA and PROTECT-IP isn’t that they need to be tweaked in order to get the details of an Internet censorship system right. There is no ‘right’ way to do Internet censorship, and the best version of a bad idea remains a bad idea.”
Last week, Leslie Harris, President of the Center for Democracy and Technology published an op-ed for ABC News describing how SOPA and PIPA could lead to “major collateral damage to Internet innovation, online free expression, the inner workings of Internet security, and user privacy.” Rebecca McKinnon from the New America Foundation published a piece in the New York Times predicting the legislation, if passed, “would strengthen China’s Great Firewall and even bring major features of it to America.”
Last month, an open letter to the leadership of the House Judiciary Committee from the American Library Association, the Association of Research Libraries, and the Association of College & Research Libraries focus on two provisions of the legislation. The letter states that “Section 201(c) contains a rule of construction concerning the term ‘willful’ that could substantially expand the range of activity considered criminal copyright infringement” and that “Section 201 extends criminal sanctions for public performances such as streaming, but does so in a manner far broader than similar legislation in the Senate.” Taken together, these two provisions could “threaten important library and educational activities.”
(Comments from civil society groups that were issued when the legislation was first introduced are posted in an older infojustice blog.)
Opposition from cybersecurity experts
David Ulevich, CEO of internet security company OpenDNS, has written an open letter to all Members of Congress calling the legislation dangerous as currently drafted for three main reasons: 1) it will be overbroad, and “there is no way to censor only illegal content without harming legitimate uses on sites as well,” 2) it will create a firewall to “censor” websites that will set a bad example for the rest of the world, “including countries we criticize for the same behavior,” and 3, it will “burden companies with an onerous level of liability for all user-generated content.” Ulevitch writes that if SOPA had been in place when he started OpenDNS, he likely would have started it outside of the United States.
A letter from CSIS Director Loenard Napolitano answering questions from Rep. Lofgren says that “My staff and I have reviewed H.R. 3261 and S. 698 and believe the Domain Name Service (DNS) filtering/redirection mandates in the bills 1) are unlikely to be effective, 2) would negatively impact U.S. and global cybersecurity and Internet functionality, and 3) would delay the full adoption of DNSSEC and its security improvements over DNS.”
Opposition from Members of Congress
Rep. Darrell Issa’s brief statement on the managers’ amendment to SOPA: “The manager’s amendment retains the fundamental flaws of its predecessor by blocking Americans’ ability to access websites, imposing costly regulation on web companies and giving Attorney General Eric Holder’s Department of Justice broad new powers to police the internet.”
Rep. Polis in a December 2, 2011 press release: “The most effective way to combat online piracy is by treating piracy as the foreign trade issue it is. Governments controlling the Internet, as China has done, whether it is done under the pretense of restricting speech or rights infringement, is not a direction that the United States should encourage. We can and must protect the Internet, promote job creation and continue fostering the most entrepreneurial sector of the U.S. economy by going after the money that supports these illicit activities without harming legitimate websites and the breathtaking architecture of the Internet itself.”
Last month, Representatives Zoe Lofgren and Darrell Issa wrote an open letter to the Members of the House Judiciary Committee warning that the H.R. 3261 “would give the government sweeping new powers to order Internet Service Providers to implement various filtering technologies on their networks. It would also create new forms of private legal action against websites – cutting them off from payment and advertising providers by default, without any court review, upon a complaint from any copyright owner, even one whose work is not necessarily being infringed.” They note that “online innovation and commerce” accounted for 15% of GDP grown from 2004-2009 and warn against putting their industries at risk through SOPA.
