Taking a Closer Look at SOPA

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Today a bill is being presented before a full committee for a vote in the House of Representatives. H.R. 3261, introduced by Rep. Lamar Smith (R-Texas), better known as the ‘Stop Online Piracy Act’ (SOPA) has been dubbed “America’s first Internet censorship system” by some of its strongest opponents.

It’s not the first of its kind to come along however. In May of this year, similar legislation known as the PROTECT-IP Act passed before a Senate committee, but a Senate hold was placed on it before it could move forward.

SOPA has taken over news headlines as internet companies try to label the bill as damaging and Hollywood fights on it’s behalf to prevent internet piracy. The bill is undoubtedly complex and extremely controversial, but this is an attempt to shed some light and present the facts surrounding SOPA.

What’s SOPA supposed to do?

The purpose of SOPA is to “protect U.S. customers and prevent U.S. support of foreign infringing sites.” It would effectively grant the government the ability to blacklist any ‘foreign’ website hosting or enabling the spread of pirated U.S. intellectual property. Blacklisting in this context means ordering ISPs to block DNS lookups for the domain, ordering search engines to prevent the site from appearing in results, and ordering financial institutions and advertising networks to halt all interaction with the infringing site—without a court order.

Additionally, the original wording of the bill was rather vague, and with vagueness comes the possibility for abuse. Abuse of vague legislation is nothing new. In July, the Renton, WA police department, citing Washington state’s “cyberstalking” law, launched a legal assault on a YouTube user who created a cartoon parody of the department’s recent scandals. For example, the vagueness of SOPA could allow a company like Viacom, already notorious for it’s failed Youtube lawsuit, to bring down the site on an infringement claim with little evidentiary basis.

Amendments

One of the amendments to the bill is a section that requires a court-order before a blacklist order could be processed. Under this amendment, however, financial institutions and advertising networks may choose to boycott a “rogue” site which is being investigated with legal immunity. Suppose a site’s ad network bails and that site is found innocent of infringement. The lost ad revenue from the duration of the trial, could seriously hurt a legitimate website. If the website is small enough, it could go under completely.

SOPA’s amendments add clarification on the meaning of ‘foreign’ in the phrase ‘foreign infringing site’, with relation to “intellectual properties of the United States.” In an article from WebProNews, “those that reside outside of our borders are clearly the focus in Smith’s amendment. If they can’t be punished by the long arm of the United States and its laws, Smith is looking to Internet service providers for help in the form of preventing access.”

In addition to “watering down” and narrowing the scope of the bill, the new amendments added this week also clarify that domestic ‘.com’, ‘.net’, and ‘.org’ domains are not covered under the bill. The vagueness of the bill had threatened web giants such as Facebook, Twitter, and Google who would be liable for user-generated infringing content. These web giants now appear to be safe from the bill.

While the text of the bill (pdf) states “Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution”, Free Speech remains a hot issue for SOPA’s opposition.

What’s next in the fight against piracy?

A new bill, “The Online Protection and Enforcement of Digital Trade” or “OPEN” offers a different approach by filing complaints with the US International Trade Commission, which already has authority to pursue intellectual property infringements. The route that the ITC would follow is rather similar to the plan outlined by SOPA, treating foreign infringing sites as a foreign trade problem. I would not be surprised to see even more bills in the next few years that attempt to address the issue of foreign piracy.

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