Did the Word ‘Manner’ Kill SOPA?

by Robert VerBruggen

By now, I’m sure, you’ve heard the horror stories of what would happen if the Stop Online Piracy Act were passed. Any website that so much as allowed commenters to post links could be shut down once a user linked to infringing content. This means no more YouTube, no more Facebook, and, heck, no more NRO. The Internet would be “blacked out.”

Problem is, in writing the law, the drafters clearly did not intend to authorize the shutdown of a website on the basis of a single infraction by a user. And I think the wording is clear enough — or at least, the intended meaning of the wording is clear enough — that it would be absurd for a court to interpret SOPA the way the law’s opponents have claimed it would operate.

I can’t say that such a court would unambiguously contradict the text of the law, however. Here’s the passage that has caused the most controversy:

[A site is “dedicated to theft of U.S. property” if it] 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 [illegal activity].

I think this is a fair paraphrase of what this means: If a website is primarily designed to engage in, facilitate, or enable illegal filesharing, it falls under SOPA. It also falls under SOPA if it explicitly markets itself as an infringer, or if it can’t be used for much else.

The problem is the word “manner” — it can be read to serve as a sort of firewall between “primarily” and “engages in . . .” One could argue that “primarily” simply refers to the site’s business model — its overall manner of doing business — and that “engages in,” etc., describes business models that are open to attack under SOPA. Therefore, any website with a business model that enables or facilitates infringement at all can be shut down.

Someone trying to shut down a site on the basis of a few scattered incidents of infringement might make the following argument in court: The manner in which (say) Facebook offers its goods or services — a social-networking site on which anyone can post anything — facilitates infringement, because users are free to post links to illegal files. Facebook is primarily designed to operate in this manner. Ergo, Facebook can be shut down under SOPA.

This isn’t to say that if this problem were fixed, SOPA would be a good law. NR’s editorial on the matter does not rely on these doomsday scenarios, and yet makes a compelling case against it. I note this merely as an example of a minor drafting error that opened a law up to some over-the-top criticism.