Congress is currently considering a bill that threatens to alter the Internet fundamentally. The Stop Online Piracy Act (SOPA) is one of the most misguided Internet-reform efforts to emerge in years. SOPA’s purported intent is to protect American copyrighted material against piracy and counterfeiting. Unfortunately, wide application of the bill’s regulations would strangle the freedom of the Internet. SOPA would require the attorney general’s office to target any website that is:
Primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates [theft of U.S. property].
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“Facilitation” is the dangerous word in the targeting criteria. Facebook, Tumblr, and dozens of other popular websites could be accused of “facilitating” the spread of pirated material if one of their members happens to post a copyrighted movie or song. Under SOPA, Internet service providers would be required to block access to websites the DOJ deems guilty of such activity. Search engines would be forced to delete linkages to offending websites. Copyright holders would have the power to prevent offending websites from receiving any online payments by sending termination notices to their payment processors, without a court order. These responses are akin to the federal government taking over the entire island of Manhattan because a vendor on Canal Street is selling fake watches.
Legislation already exists that fights websites focused on piracy: the Digital Millennium Copyright Act (DMCA). The DMCA, which was signed into law in 1998, has specifically tailored sections for websites that focus on the distribution of pirated material, and requires the removal of those websites. SOPA differs from the DMCA in its broader scope and powers.
The driving industry behind SOPA is the Motion Picture Association of America (MPAA). Michael O’Leary, vice president of the MPAA, testified before Congress that, “fundamentally, this [bill] is about jobs.” Mr. O’Leary asserted that without SOPA, millions of Americans associated with the production of movies in America would lose their jobs. Support for SOPA also crosses party lines and has made for strange bedfellows.
The bill was introduced by Rep. Lamar Smith (R., Tex.), and currently has 26 cosponsors including John Conyers (D., Mich.), Peter King (R., N.Y.), and Deborah Wasserman-Schultz (D., Fla.). Representative Smith argued that we cannot “fail to take effective and meaningful action when criminals misuse the Internet. The problem of rogue websites is real, immediate and widespread. It harms all sectors of the economy.” Conyers insisted that SOPA is harmless, and accused critics of hyperbolically claiming it would transform America into a “repressive regime.” Smith and Conyers have even tried to claim that the bill would protect American soldiers, by preventing the sale of counterfeit military goods (ignoring the fact that there are already specific laws against such transactions). The clearest connection among the cosponsors of SOPA appears to be campaign donations from the movie industry — 18 of the 22 sponsors have already received substantial donations from the television, movie, and music industries in the 2012 campaign cycle. For many of these representatives, these industries are the biggest donors to their campaigns.
Yet there is growing opposition to the Stop Online Piracy Act both inside and outside Congress. Rep. Darrell Issa (R., Ca.) has stated that there is “a very broad coalition from far left to far right who realize this will hurt innovation, something we can’t afford to do. And there are other ways to accomplish what they say is their goal.” Even Rep. Nancy Pelosi (D., Ca.), has agreed that there is a “need to find a better solution than SOPA.” Outside of Congress, the leading Internet companies (AOL, eBay, Facebook, Google, LinkedIn, Mozilla, Twitter, Yahoo!, and Zynga) have protested SOPA, asserting that it would set “a precedent in favor of Internet censorship” and damage the “innovation and growth of the Internet.”
The constitutionality of the SOPA is also questionable. In Reno v. ACLU in 1997, the Supreme Court unanimously ruled that Congress had an “over arching commitment” to ensure that any bans on the Internet had to “accomplish its purpose ‘without imposing an unnecessarily great restriction on freedom of speech.’” With its wide definition of facilitating piracy enabling the suppression of entire websites, SOPA does not appear to meet this criterion.
The Stop Online Piracy Act should not pass in Congress. Its poor design would strangle free speech on the Internet, harm our economic competitiveness, and possibly betray the Constitution. It emerged out of a miasma of corporate lobbying, and hopefully the rest of Congress will see fit to send it back to the depths from which it came.
— Nathaniel Botwinick is an editorial intern atNational Review Online.
Don't worry, this is just another political shakedown. It will go away when Google, Facebook, YouTube and others come up with the necessary "contributions".
Do you really think that any of those legitimate services fall within the definition you cited?
"Primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates [theft of U.S. property]."
Seems like a stretch to me.
Also, a federal judge has to approve of any site blocking or search result purging that takes place, not websites that "DOJ deems guilty of such activity."
I agree Chris, none of the mentioned websites could remotel be considered to have only 'only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates [theft of U.S. property]."
Facebook, Tumblr, et al would be safe from any blocking, at least under the current bill's language. I would interested to see under what rubrik facebook would be said to have limited purposes other than piracy.
The article says, "Facebook, Tumblr, and dozens of other popular websites could be accused of “facilitating” the spread of pirated material if one of their members happens to post a copyrighted movie or song"
Yes, you are correct. And that is illegal, so these sites either need to monitor and police the content that is ON THEIR OWN SITES or else be held responsible for it.
This is not about "Internet censorship." It is about the protection of original content, copyright, and the income of people who produce this original, creative content.
If a website contains illegal material that they are sharing that does not belong to them, then they will get blocked, as they should. If they are doing nothing wrong, then nothing will happen to them. It is just like people and the police. If you don't steal a book from a bookstore or a CD or a DVD from Best Buy, the police leave you alone. If you break the law, then you have to deal with the police and courts and judges. It is not different when someone steals online.
Any site that steals and / or spreads someone else's copyright material - the results of someone else's creativity and labor - and give it away for free is already breaking the law, whether it is Demonoid or Facebook. And this action (or lack of monitoring action) steals income directly from the creative artists like musicians and authors.
Do you mind if I take your article above, put my name on it, and sell it to a number of other websites? I didn't think you would...
So what you are saying is that if a few users on Facebook post copyrighted material then the government has the right to shut down all of Facebook? Or if someone posts a video clip on YouTube that might contain copyrighted material then all of YouTube needs to be shut down?
The bill does not require any "primary purpose" criterion. It can be that, OR mere "facilitation" (which is a term elastic enough to cover anything, as the article correctly notes).
Although both SOPA the DMCA have similar notice – counter-notice due process steps, SOPA does not amend the DMCA. The notice/counter-notice provisions of SOPA give accused websites additional procedural protections to ensure they have a chance to contest an allegation they are a site “dedicated to infringing activity” before a Federal Court proceeding may be brought by a private actor. The DMCA is a limited remedy that allows for the takedown of infringing material hosted only on U.S. sites. SOPA is designed to address the growing problem of “foreign infringing sites” and Internet sites “dedicated to theft of US property”. DMCA offers no recourse for foreign rogue sites which are outside the jurisdiction of its notice and takedown procedures.
Rogue websites exist to benefit from the theft of other’s intellectual property – no one has provided even a single example of a rogue site that contains speech protected by the First Amendment. Copyright infringement and trademark counterfeiting are not protected speech. As Senate Judiciary Committee Chairman Patrick Leahy has said, “There is no First Amendment right to theft.”
Since when does someone have a right to use my property without my permission? This is a basic property rights issue. Nobody else has a right to use my stuff without my permission - not the government and certainly not some foreign website. If someone is going to profit off of my stuff, it is going to be me.
Also - you can't cloak your desire to steal in the 1st Amendment. There is no 1st Amendment right in theft. That is against US law - and the Ten Commandments the last time I checked.
The underlying crimes are already criminalized. I assume the new law doesn't create new crimes. I assume that SOPA merely provides an additional tool to go after the thieves.
All that being said, the real question is whether this will really be useful or whether it will be another land grab by big gov't. The answer may be that law enforcement does not currently have the tools to police this arena. The answer may also be that this is unnecessary and will infringe on lawful enterprise. That the answer may be somewhere inbetween is when it gets sticky.
The author makes several inaccurate points in his critique of SOPA. He argues that the bill would “strangle the internet” because it targets sites that “facilitate” infringement. Unfortunately, he makes the same mistake as other opponents of the bill – namely ignoring all of the qualifying language in the definition. It is not enough just to “facilitate” infringement. Sites must be “primarily designed or operated”, have “only limited purpose or use other than” infringement or be “marketed” by the site operator or his agents to do so. The author also questions the constitutionality of the definition, but criteria used in this bill originate from long-existing U.S. law and Supreme Court precedent. The first part of the definition is taken from 17 U.S.C. §1201, the provisions of the DMCA which define circumvention devices. The second part of the definition (regarding sites that are willfully blind or take deliberate actions to encourage infringement) comes from the Supreme Court’s decisions in both the Grokster case and the Global Tech case. Finally, while opponents of this bill, including the author, like to dismiss the many members of the creative sector like church music publishers, graphic artists, photographers, individual authors, sound recording engineers and other small and independent businesses who are actively supporting the legislation in order to claim instead that Hollywood is “the driving force behind the bill”, such assertions, while convenient, are both inaccurate, and downright disrespectful of those who may not wield the lobbying power of Hollywood or the tech industry, but are adversely affected by theft on line nonetheless.
The operative word in the criteria listed in the article is 'or'. The way I read it, it doesn't say it has to meet all of those requirements, it only has to meet one of them.
Nothing coming out of Congress is what it appears on its face. This would be one more step (or "tool" if you prefer) in the eventual censorship of the web so that the big boyz running the show don't allow the sheeple to actually see whats going on. They operate best when you are in the dark.
It's time for stronger legislation. I know many good people who have lost jobs in the music industry, and I couldn't be happier than should I see this go through.
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