The Stop Online Piracy Act in the House and the Protect IP Act, its counterpart in the Senate, which I’ll refer to both as SOPA, are currently the source of a great deal of controversy. It appears that, currently, the sides drawn are currently Congress v. Tech Industry and the American Popular Opinion. This blog article, unlike others which aim to be informative should be considered my opinion on these current pieces of legislation.
I should be clear that as an intellectual property lawyer and a person who respects property rights the protection of intellectual property rights is very important. Further, I believe that the intellectual property regime as instituted in the United States and most other countries provides incentives that have made the United States competitive in the global marketplace. Patents provide incentive to spend the money to invent useful items through a temporary monopoly. Trademarks provide the consumers knowledge of where their goods are sourced from, allowing for consumer protection. Copyrights provide the incentive to create art, knowing it can be protected and will not be copied. However, SOPA is overkill in protecting these rights.
The bill would allow the United States Department of Justice to bar online advertisers and payment facilitators from doing business with websites, bar search engines from linking to the sites, and force ISPs to block accessing the site. It also allows ISPs to voluntarily shut down such sites and give them immunity in doing so.
The point of intellectual property is to provide incentives to invention and creation. This bill will undo just that. Currently, the United States is the leading jurisdiction for internet innovation, with services like Google, Twitter, and just about any of the big name tech companies being housed here. The Consumer Electronics Association, Microsoft, Google, Twitter, Business Software Alliance, Ebay, Yahoo, and others have all came out against the bill. With this bill, self-censorship could become the norm and US companies ability to innovate may be severly hampered. Further, open source projects including Mozilla (of which the popular browser Firefox was born) could be shut down.
Further, streaming of copyrighted materials is to be a felony, an incredibly harsh sanction. The ISPs will be forced to monitor all internet traffic, exactly the type of privacy invasion that has been fought against in the past. Further, the law extends beyond the borders of the United States. Some may believe this to be necessary, but I believe it to be beyond the bounds of the United States in the world. This combined with little to no manner to defend takedowns for those using the allegedly protected materials with defenses involving the first amendment, lack of actual protection, or other defenses makes it a truly terrifying possible law.
Finally, the United States operates on due process. You have your day in court or some sort of hearing before actions are taken. Currently, even under the DMCA regime, in which letters are sent and content providers have to take down alleged infringing material, 41% of the complaints studied were from the competitors of the targets and many more were legally insufficient. Source. Later, in 2009, Google stated that 59% of its complaints were from competitors. SOPA goes even further. In short, the ability to cause whole websites, or even businesses to be shut down through an alleged violation, without a day in court is simply un-American.
SOPA is a terrifyingly broadly written law. While it may be in the spirit of doing the right thing, the fact that a chunk of the industry it seeks to protect as well as its overbroad scope and draconian measures make it a tool inappropriate for the job at hand. Perhaps re-writes will help it become a reasonably tailored law.