SOPA and PROTECT-IP: A Line-By-Line Analysis of the Bills We Must Kill
The Stop Online Piracy Act (SOPA), AKA H.R. 3261, is an extremely polarizing proposal to change the way that U.S. copyright enforcement works on the web. The supposed goal of SOPA and its sister bill in the Senate, PROTECT IP, is to help protect U.S. copyrights from foreign trespass. Yet the bills could grant powers well beyond those goals to both copyright holders and to the U.S. government.
What follows are my observations after reading both SOPA and PROTECT IP, complete with sourcing and explanations. I make no claim that my observations are exhaustive, but they may be of use for those interested in citing specific problems with SOPA.
SOPA was the more difficult of the two bills to read, in part because of its length and repetitiveness. To a greater extent than PROTECT IP, it references a variety of outside statutes with which I am not familiar. SOPA also has quite a bit of pork in it -- but more on that in a moment. Most importantly, the title is the only part of the bill that actually deals with the supposed intent of SOPA.
SOPA's first section is devoted to provisions attempting to allow the United States government to shut down foreign sites that infringe on copyrights held within the United States. This is a nearly impossible task -- U.S. law in general holds no direct sway over foreign entities. Control can only be instituted domestically.
SOPA enumerates a pervasive program by which "foreign infringing sites" are to be controlled. It calls upon advertisers to pull all advertisements on foreign infringing sites and to cease financial transactions with such sites, payment networks to do the latter, and search engines to expunge links to the sites. It further requires service providers to cease allowing U.S. extensions of the site to exist.
You may not think this especially outrageous, but consider: the ability to file these suits rests with the federal attorney general (the ability of copyright holders to file suit comes with its own issues and is discussed more in the following section). As to the actual evidence the attorney general needs to start a suit, it's a little short. There is a clue on page 10 where "foreign infringing sites" are defined as U.S.-directed sites whose owner is "committing or facilitating the commission of criminal violations" punishable under a laundry list of U.S.C. sections. The weasel words: "facilitating the commission." Section 2319A and B of the U.S.C. are mentioned, for example, and if you look them up you'll find that they provide against selling unauthorized recordings of live performances. If I am a foreign retailer selling cameras to bootleggers, among other people, am I facilitating the commission of that crime? How about cell phones? What if the site in question is an overseas branch of Ebay where some people sell bootleg American films the way bootleg animé is sold here?
The radius of effect expands quite a bit. Of course, it could also reasonably be argued this will have little effect on the experience of the average American. It would depend largely on how restrictive the government chose to be.
In passing, I'll note that paragraph 3 of page 10 states that foreign infringing sites "would, by reason of acts described in paragraph (1), be subject to seizure in the United States ... if such [a] site were a domestic internet site." But puzzlingly, all paragraph 1 stipulates is that the site in question be a U.S.-directed site, and the definition of a "U.S.-directed site," starting at line 18 of page 8, never once specifically states that sites must be foreign.
Whether that loophole would imply that the U.S. government has the right to seize domestic sites not because of a specific legal violation -- those are enumerated in paragraph 2 -- but simply because they are U.S. directed, I don’t know. If it does: how many U.S. sites can you think of that are not "used to conduct business directed to residents of the United States"?
The essential question becomes whether a judge would consider exploiting this wording to be in the spirit of the law or not. I'd just as soon it not be on the books at all.
You'll notice that the question we return to in evaluating both the effects on foreign sites and the potential that this bill could be exploited to influence domestic sites is: "How far will the government push things?" While that answer is not readily forthcoming, the dozen or so pages where the rules are laid out for how service providers, search engines, payment networks, and advertizing services will be required to deal with foreign infringing sites are not encouraging.
When it was mentioned before, you may have noticed that the amount of control that Uncle Sam wants to exert over these groups is more suited to a murder investigation than, for example, illegal song downloads. In some ways, it's even more invasive. It's one thing for the government to request information with a court order, and quite another for it to dictate on a case-by-case basis how businesses deal with customers.
First, it sets a bad precedent at a bad time: the GM bailouts already pushed the limits, and this would put the U.S. government in very close association with all organizations aligned with the internet.
Secondly, as others have pointed out, the potential for censorship is strong. It's likely possible to build weak cases against a host of foreign sites across the acts cited, and a weak case is all that is needed. As page 12 notes, injunctions can be issued "following commencement of an action" (emphasis mine), and these include injunctions "in an action brought in rem under paragraph 2" (in rem means "against a thing," and paragraph 2 is where the four groups prior mentioned are listed). As I read this, that allows for the effective censoring to be exercised not when the case is proven, but when it is opened.
Among my favorite sections is section 103, which purports to be a "Market-based system to protect U.S. Customers." Make a note of it: these congressmen think forcing payment networks and advertisers to cease services to a website is "market-based." Incidentally, does the stipulation sound familiar? In fact, the earlier section discussing how foreign infringing sites should be cut off gave very similar instructions to this one. The only major differences are that this section is with respect to copyright holders, not the attorney general, and deals specifically with payment networks and advertisers because they mediate transfer of capital to website operators. The ... ahem ... market-based top-down directive goes on to require specific agents be designated by these companies to handle the government's notifications (page 28).
To me, this implies that they plan to have a lot of these notifications in the pipeline. Or then again, maybe they figure that forcing companies to hire people to deal with paperwork will stimulate the economy (largely because the idea of creating value is utterly alien to them).
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