As I’m sure many people know by now, congress is trying to pass the “Stop Online Piracy Act” (SOPA) bill in the House of Representatives and the “Protect IP Act” (PIPA) bill in the Senate. Much has been said about how both bills will do great harm to the Internet, free speech, and innovation. Here’s a great video that summarizes what the affects of passing these bills will likely end up being:

 

The bills are being lobbied hard by industry which includes such entities as the MPAA whose boss Chris Dodd, the former U.S. Senator from Connecticut now lobbyist, even noted [1] that if the Chinese censor the internet without a problem, why can’t the U.S.? If that wasn’t enough, those in the entertainment industry involved with getting the bills passed are playing hardball by hiring the congressional staffers who helped write SOPA/PIPA and making them entertainment industry lobbyists [2].

It’s important to take a stand and let your voice be heard. Without everyone’s support in preventing SOPA and PIPA from being passed then we are all going to loose while industry who lobbied for such bills will scale back the kind of innovation we’ve seen over the many years ever since the Internet took off.

And it’s not just innovation that suffers, but freedom of speech will suffer too. It seems fitting that while congress and industry are working hard to pass SOPA and PIPA, Hillary Clinton recently gave a speech urging countries not to stifle online voices [3]. And aside from China, you certainly don’t have to look very hard to see where voices in other countries are indeed being stifled online, such as those countries in the Middle East and Russia [4].

Recently, Laurence H. Tribe, who is a professor of constitutional law at Harvard Law School, weighed in on SOPA and noted in a paper [5] that SOPA indeed violates the first amendment. In his paper he makes a couple of key observations, such as Section 103(a) running afoul of the “prior restraint” doctrine (bold mine):

The notice-and-termination procedure of Section 103(a) runs afoul of the “prior restraint” doctrine, because it delegates to a private party the power to suppress speech without prior notice and a judicial hearing. This provision of the bill would give complaining parties the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice accusing the site of being “dedicated to theft of U.S. property” – even if no court has actually found any infringement. The immunity provisions in the bill create an overwhelming incentive for advertisers and payment processors to comply with such a request immediately upon receipt

Mr. Tribe then notes how this is in direct violation of the Supreme Court’s standing requiring judicial determination to actually impose a valid final restraint:

The Supreme Court has made clear that “only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression [and] only a procedure requiring a judicial determination suffices to impose a valid final restraint.” Freedman v. Maryland, 380 U.S. 51, 58 (1965). “[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976).

Tribe then continues on with saying how SOPA can cause severe practical problems for sites like Facebook, Twitter, and YouTube:

SOPA provides that a complaining party can file a notice alleging that it is harmed by the activities occurring on the site “or portion thereof.” Conceivably, an entire website containing tens of thousands of pages could be targeted if only a single page were accused of infringement. Such an approach would create severe practical problems for sites with substantial user-generated content, such as Facebook, Twitter, and YouTube, and for blogs that allow users to post videos, photos, and other materials.

If that wasn’t concerning enough, then there’s a follow up about how web sites would effectively have to actively police themselves under the absence of specific infringing acts. This imposed monitoring goes against an existing law that does not require such actions (bold mine):

The bill’s harmful impact is aggravated by the fact that the definition of websites “dedicated to theft of U.S. property” includes sites that take actions to “avoid confirming a high probability of … use” for infringement. Absence of knowledge of specific infringing acts would not be a defense. Thus, the definition would effectively require sites actively to police themselves to ensure that infringement does not occur. In effect, the bill would impose the very monitoring obligation that existing law (in the form of the Digital Millennium Copyright Act of 1998) expressly does not require. SOPA would undo the statutory framework that has created the foundation for many web-based businesses.

And to think that all of this is summarized in the first two pages of Tribe’s 23 page paper!

Hopefully this encourages you to take part against such aggressive bills. Without people being aware of the implications that SOPA and PIPA both have and not doing anything about it, those who fought to push the bill through congress win and we are all worse off for it. It’s even sadder since both SOPA and PIPA have hardly made a blip on broadcast news, and President Obama appears to not have made a formal statement about these bills and whether he would veto them if passed.

Do your part while you still have a chance — Help save the Internet by making your voice heard.


[1] MPAA Boss: If The Chinese Censor The Internet Without A Problem, Why Can’t The US?

[2] Shockingly Unshocking: Two Congressional Staffers Who Helped Write SOPA/PIPA Become Entertainment Industry Lobbyists

[3] Clinton Urges Countries Not to Stifle Online Voices

[4] Internet censorship in Russia

[5] The “Stop Online Piracy Act” (SOPA) Violates The First Amendment