On October 26, 2011 the Stop Online Piracy Act (SOPA or “the Act”) was introduced in the U.S. House of Representatives. Under the guise of promoting “prosperity, creativity, entrepreneurship, and innovation”, Congress advocates a bill which establishes a far-reaching and free speech suppressive IP protection regime that is even more restrictive than the congenial French Hadopi Law. The Act, which is based on the Pro IP Act of 2008 and Senate's PROTECT IP Act, among other things aspires to fight foreign websites that infringe U.S. intellectual property rights and expands the authority of U.S. law enforcement agencies and copyright-holders to prosecute alleged IP violations.

I will discuss some provisions of SOPA, which in their present version establish Internet control mechanisms that seem to be particularly problematic: To prevent IP violations by foreign websites, Section 102 SOPA enables the Attorney General, who identifies a foreign website or portions thereof (!) as “committing or facilitating the commission” of copyright or trade secret violations, to seek a court order that requires Internet advertising services to stop advertising for the alleged infringing foreign site, payment network providers to cease processing payment transactions involving the respective site, service providers to deny their subscribers access to it and Internet search engines to prevent the infringing site from ”being served as a direct hypertext link”. All of this has to happen within a period of five days after receipt of a copy of the court order and without a court hearing or trial.

In addition to the mechanisms provided for the Attorney General, SOPA establishes a regime of privately administered justice: Section 103’s so-called “market-based system” which targets both, foreign and U.S. sites, is directed at websites that are “dedicated to the theft of US property”. This requires the site or a portion thereof to be a U.S.-directed site that “engages in, enables, or facilitates” copyright infringements. The provision allows copyright-holders themselves to send notices to payment processors and Internet advertising services to terminate their business relationship with allegedly infringing websites. After receiving the notice, payment processors and ad services have five days to comply and are responsible for the notification of the concerned website. Section 104 provides another tool of private law enforcement: The provision goes so far as to even discharge liability from payment processors, Internet search engines, domain name registrars et al. that voluntarily block websites or end any existing business relationship with it, if they had a “reasonable belief” that a website engages in copyright infringement.

Even if one excludes IP infringements from the realm of free speech protection, the present wording of the bill - if not amended or narrowly interpreted - raises serious free speech concerns due to its overbreadth. Section 102 is not only directed at websites or portions thereof that “commit” but also at those that “facilitate” copyright or trade secret infringements. In Section 101 the Act further states that Section 102 addresses Internet sites or portions thereof that do not contain “reasonable measures” to prevent infringing goods or services from being obtained in or delivered to the United States. To provide an example, both provisions taken together would allow the Attorney General to take action against any foreign website of the like as Vimeo, Flickr or YouTube? that hosts user generated content if only one of its users posts infringing content or provides links to potentially IP infringing sites.

Section 103 raises similar problems. Although it is only directed at a website or a portion thereof that 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” the violation of copyrights and trademarks, the terms “enable” and “facilitate” might be interpreted in a way so that the provision targets websites that have no intent at all to enable or facilitate IP violations. Any VPN, proxy, privacy or anonymization software that serves Internet users’ privacy concerns – which are not only pivotal if one lives in an autocratic state – could fall within the scope of this wording as the anonymity they provide theoretically “enables” copyright infringements.

If SOPA’s proposed sanctions were applied, the operation of the targeted websites would be stifled and a wide range of legitimate content they host or enable would fall prey to the Act’s regime even if only some minor content of the respective websites commits or enables IP violations. This would implicate various free speech problems: Lawful content would be suppressed in order to prevent the distribution of unlawful content and websites that offer expression platforms or anonymity tools to users could be forced to close down although they never had any intent to violate IP provisions. This stands in stark contrast to the safe harbor provisions of the DMCA, a framework that takes free speech interests into account. These new broad standards of liability would motivate user-driven sites to implement elaborated systems to monitor their user’s activities and establish a private censorship regime.

Another proposition of the Act adds to the free speech concerns in a broader sense: Section 102 requires ISPs to not perform Domain Name requests to websites that are targeted by SOPA. If implemented, this provision would - besides serious technical concerns - send out a politically detrimental message: If a government can institutionalize Internet censorship tools to enforce its IP laws, why could another government not filter Domain Name requests to protect central state interests such as the integrity of the political system or the preservation of cultural traditions and values and subject all websites to the filtering process that display opposed content? If SOPA will be enforced in its present form it will officially declare it legitimate for governments to cripple websites that do not entirely comply with state interests and to fragment and localize the Internet, a media that is supposed to function globally and openly.

SOPA’s proposed measures involve serious free speech restrictions, which have to be narrowly tailored to the Act’s goal to prevent actual IP violations. The present framework, if applied according to the text, does not satisfy this standard. But even if narrowed down, it remains questionable if Internet censorship – the major tool of the Act – could ever be a legitimate means to protect IP interests.

-- NuschaWieczorek - 22 Nov 2011

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