The Cornell Law School Federalist Society

SOPA, the biggest threat to modern free speech

December 28th, 2011 by Kirk Sigmon

Note: The vast majority of the non-essential websites I run or host are being redirected to this page for the entirety of January 18, 2012. This is my form of participation in an internet-wide protest, of which Google and Wikipedia are also participating. Normal services will resume on the 19th.

The modern Internet is a battlefield. One end of the battlefield is comprised of companies and individuals owning intellectual property — from copyrights on video games and movies to likeness rights and the like. On the other end of the battlefield is the Internet — that is, more specifically, everyday people who use the Internet for information, entertainment, and for communication. The former group wishes to control the latter. And they may have their wish.

The Stop Online Piracy Act, often abbreviated as SOPA, is essentially a bill that grants the Attorney General the right to actively hunt down websites that “engage[] in, enable[], or facilitate[]” the infringement of intellectual property. The SOPA also allows the Attorney General to prosecute website owners who fail to “confirm . . . a high probability” of IP theft on their website or who “operate[] [a] U.S.-directed site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation” of intellectual property law. The SOPA additionally gives the Attorney General the right to sue a foreign website in rem, seemingly regardless of whether or not the website is in fact hosted or maintained within the US. Once the Attorney General has his target in sight, be it in personam or in rem, the Attorney General may then demand that search engines, ad networks, and payment networks stop serving the website in question.

But all of this may be unnecessary, because the SOPA seems to encourage Internet companies to take the law into their own hands. SOPA not only grants ISPs and other Internet companies immunity for voluntarily disassociating themselves with websites that violate IP law, but it also grants such companies complete immunity from liability when they refuse to associate with websites that “endanger[] the public health,” which it generally defines as a website “offering, selling, dispensing, or distributing any prescription medication, and does so regularly without a valid prescription [or that is adulterated or misbranded].”

It gets even more extensive. SOPA criminalizes the streaming of copyrighted work — that is, the live (or, ostensibly, delayed) provision of music, movies, or the like in violation of intellectual property law.

So why should we care about SOPA? The answer is quite simple: SOPA is an attempt to quite literally destroy the Internet as it exists today. It is an attempt to turn the Attorney General into an arm of Intellectual Property owners, it is an attempt to create a veritable Internet-based “red scare” whereby Internet companies are encouraged to refuse to do business with one another, and it is an attempt to limit the innocent activity of Internet users in order to line the pockets of select few copyright owners.
The interests of a select few influential copyright holders should not trump the innocent and otherwise legal utilization of the Internet by millions of Americans. To do otherwise would trample on the very foundations of free speech and free markets that our entire country rests upon.

First off, SOPA attempts to turn the Attorney General into a weapon of select owners of intellectual property, using him or her as a proxy for the restriction of free speech. Where the SOPA would allow the Attorney General to punish websites that “engage[] in, enable[], or facilitate[]” piracy, virtually any website could be shut down: YouTube (as it regularly facilitates the inadvertent infringement of movie copyrights), Facebook (song lyrics, pictures, etc), Google (cached versions of images, providing access to links to .torrent files, etc), Reddit (linking to various copyrighted works, pictures, etc), and even Twitter (trademarked phrases, photos, links to pirated material, etc).

The unfortunate result of such breadth would not be the dismantling of the Internet, however — it would be impermissible forms of discrimination based upon the nature and content of speech on the Internet, not to mention discrimination based upon political connections and power. Don’t like a political website that inadvertently placed a copyrighted photo on their forums? Get someone to prosecute. Don’t like a rival video hosting website or social media network? Paint them as a haven for online pirates until someone prosecutes. Want to gain an one-up on a rival start-up website? Call in some political favors and prosecute (and enjoy the added benefit of making all financial institutions refuse to do business with your competitor). The possibilities are as endless as they are frightening.

Second, SOPA attempts to create an Internet-based “red scare” whereby individual companies are tasked with disassociating themselves from websites that allegedly “engage[] in, enable[], or facilitate[]” piracy. Where individual Internet-based companies are tasked with finding out who not to do business with, they must not only spend the money and time to worry about such matters, but the aforementioned frightening possibilities become more real and more arbitrarily applied. Paranoid search engines may not wish to deal with companies that legally toe the lines of intellectual property law in order to enjoy the SOPA’s promise of immunity.  Perhaps even worse, under the guise of adhering to copyright law, nefarious ISPs may attempt to censor websites and programs they do not like in order to prevent consumer backlash against them or in order to curry favor with other companies.

Third, the entirety of SOPA appears to be an attempt to create further lucrative monopolies in the hands of intellectual property holders. The best example of this dynamic comes from the prohibition on streaming, which I have written about before in the context of a predecessor bill. Where IP-holding parties can use the Attorney General to prosecute those making innocent “Let’s Play” videos and streams of themselves playing video games, they gain two advantages: they not only can force the latter parties to pay for rights to do what they have already been doing (virtually harm-free) for free, but they can do so via the mechanism of the US Government, meaning the cost of enforcement for them is nil.  Where the maximum punishment for streaming a new video game under the SOPA would be ten years, the incentive to pay up would be strong.  Similarly, the wide breadth of the SOPA’s primary engage/enable/facilitate provision indicates that copyright owners may be able to use the threat of prosecution to extort money from websites and entities that merely facilitate other people to violate copyright law.

Note that there are many, many other problems with SOPA that much better authors have identified — I’m merely scratching the surface.

So what does an Internet post-SOPA look like?  The Mad Max movies come to mind.  Gone would be all websites currently toeing the line of IP law, including websites that regularly facilitate copyright infringement like YouTube.  Online piracy would unquestionably still exist, though most pirates would switch to decentralized BitTorrent networks and proxy servers.  Surviving Internet companies spend grandiose amounts of time and money searching out various IP infringements on or related to their own websites and services, refusing to do business with people and businesses that even “look funny” regardless of whether or not these people and businesses would actually be found guilty in a court of law.  Enjoyable and relatively harmless hobbies like “Let’s Play” would be dead, and various basement-dwelling Internet video makers like the so-called “Angry Video Game Nerd” would be thrown into jail for ten years.  Select IP holders — SOPA supporters like Sony, Nintendo and, NBC in particular — would find themselves even richer as they utilize the criminal law to patrol the use and enjoyment of their own works.  Anyone with political power could get a website with content they disliked prosecuted for unwitting copyright violations.  Foreign website owners who have never seen or touched the shores of the United States would find themselves subject to criminal prosecution in the US for no reason other than American use of their website.  And, to make things even worse, a Congress convinced it can regulate the Internet through the SOPA would likely find it appropriate to create new and even more draconian laws regulating the Internet — from content regulations to access regulations and beyond.

In short, the SOPA is a bill that is bad for the Internet, bad for free speech, bad for business, and bad for America.  The interests of a select few influential copyright holders should not trump the innocent and otherwise legal utilization of the Internet by millions of Americans.  To do otherwise would trample on the very foundations of free speech and free markets that our entire country rests upon.

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