The Great Firewall of America: Is the United States on the Road to Becoming the Next Internet Villain?

by Cynthia Flores Porco January 16 2012, 20:36

           In the past couple of months, two Congressional bills have been the subject of a heated debate between media industry giants and some of the world’s largest technology companies: the Stop Online Piracy Act (SOPA) in the House and its Senate counterpart the PROTECT IP Act (PIPA). This legislation is meant to provide the Department of Justice and copyright holders with the ability to curb access to “rogue” foreign websites dedicated to infringing or counterfeit goods. Since the U.S. government does not have the power to take down foreign websites, this bill would grant it the ability to forbid Internet providers from allowing users to connect to those sites. While many entertainment and pharmaceutical companies are in support of these bipartisan bills, digitally oriented companies such as Google, Facebook, and Mozilla have publicly voiced their opposition. Although the problems the bill attempts to address – online piracy, copyright, and trademark infringement – are serious and present a number of enforcement challenges, this vaguely written, catch-all legislation is alarming in its reach.

            Most would agree that copyright protection is important, without it, creativity would be stifled and innovation discouraged. For this reason, in 1998, the Digital Millennium Copyright Act (DMCA) was passed as a fairly new mode of communication (i.e. the Internet) threatened existing copyright protections. With copyright infringement laws already on the books, many are skeptical of SOPA (and PIPA) as a tool for preventing copyright infringement, and instead see it as an attempt by the government and corporations to censor the Internet. Under the existing "safe harbor" provisions of the DMCA, an Internet service provider (ISP) who acts in good faith to take down infringing content upon notice is not held liable for infringement. This provision immunizes sites that may unknowingly host infringing material uploaded by a user and has served as a cornerstone of the Internet’s growth and success. 

            As originally written, SOPA departed from DCMA in several significant and problematic ways. If passed, ISPs would no longer have immunity and would be responsible for reviewing all registered domain names to ensure none are infringing on copyrighted material. The streaming of such material would become a felony, exposing sites such as YouTube to penalties if any of its users stream copyrighted material. Search engines would be required to block sites and links to infringing websites. In addition, payment processors and advertisers would be required to cease business with web sites the government has chosen to sue as well as any site that a private copyright or trademark owner claims is predominantly infringing. The impact this legislation would have on Internet intermediaries is quite significant. According to YouTube, 48 hours of video are uploaded to its site every minute, resulting in nearly eight years of content uploaded everyday. Under the original version of the bill, YouTube would have had the burden of checking every video uploaded to ensure that copyrighted materials were not being shared; failure to do so could have resulted in penalties or legal action. If passed, Google would not have been permitted to display “rogue” websites in their search results and PayPal would not be allowed to conduct monetary transactions for such sites.    

            The effects of SOPA are potentially far reaching. Requiring ISPs, search engines, payment processors, and internet advertisers to block access to a number of “blacklisted” websites would constitute a significant departure from the United States’ long-standing policy of allowing these intermediaries to focus on empowering and facilitating communications rather than monitoring, supervising, and policing them. This policy has played a major role in advancing the Internet’s uniquely decentralized structure which has served as a “global platform for innovation, speech, collaboration, civic engagement, and economic growth.” 

            Critics of the bill worry about the potentially huge overhead costs necessary to monitor users as well as the daunting financial burdens and legal risks it would create for start-up companies. The bill would most likely discourage investors from financing a start-up site that could be shut down at any minute. In addition, SOPA also gives rise to serious First Amendment and due process concerns.  PIPA would empower theAttorney General to create a list of blacklisted sites without a court hearing or a trial. SOPA went further and allowed private companies to sue ISPs for unknowingly hosting content that infringes copyright. The owner of a site could have his or her “property” taken without a fair hearing and a reasonable opportunity to present evidence on their behalf. Not only does this violate due process, it is also an unconstitutional restriction on freedom of speech. According to the Supreme Court, “governmental action suppressing speech, if taken prior to an adversary proceeding and subsequent judicial determination that the speech in question is unlawful, is a presumptively unconstitutional prior restraint.” The Constitution provides that a court make a final determination that the material is unlawful “after an adversary hearing before the material is completely removed from circulation.” Under these bills, websites could be taken down immediately upon the filing of an infringement claim; this clearly violates the Constitutional requirements that must be met before speech can be eliminated from circulation.

            In response to the concerns voiced by critics, SOPA’s primary sponsor, Representative Lamar Smith, issued a manager's amendment on December 12th which removed some of the original bill’s egregious language in an effort to narrow it. In the amendment, Smith clarifies that SOPA’s provisions will only apply to foreign rogue websites and will not cover any domestic sites such as YouTube, Facebook, and eBay. It states that the bill is not meant to create an obligation for websites to monitor all user content. It also proposes that all DMCA safe harbors remain in place for intermediaries, requiring ISPs to only take measures they determine to be the “least burdensome, technically feasible, and reasonable” to satisfy their obligations under the bill. Though the manager’s amendment clarifies and makes changes to some of the more controversial provisions of the original bill, SOPA’s problem is not in the details but in the core idea of creating an Internet blacklist. 

            While leading technology companies continue to assert that the modified version of SOPA does not go far enough in narrowing its definitions and curtailing its obligations, many of them have voiced their support for a more limited proposal. The Online Protection & Enforcement of Digital Trade Act (OPEN) is an alternative bill that would combat piracy in a more targeted manner. It would retain the “safe harbor” provisions of the DMCA, require “willful infringement” and a conclusive International Trade Commission (ITC) investigation before a foreign website can be labeled as “rogue.” However, the enthusiasm over this bill is not shared by the entertainment industry which sees the proposal as “ineffective and believes that the ITC is slow and often biased in favor of tech companies over content originators.” 

Though online piracy and copyright infringement is a serious problem that needs to be addressed, SOPA and PROTECT IP appear to simply be a product of Hollywood’s lobbying efforts rather than a carefully thought out plan to protect copyrights and trademarks. This is supported by the fact that the 32 sponsors of SOPA received four times as much in contributions from the entertainment industry than Internet companies. As stated in a joint letter by a number of Internet organizations to the House of Representatives’ Committee on the Judiciary, congress should “consider more targeted ways to combat foreign ‘rogue’ websites dedicated to copyright infringement and trademark counterfeiting, while preserving the innovation and dynamism that has made the Internet such an important driver of economic growth and job creation.” American intellectual property should be protected in a manner that does not suppress innovation and is compatible with freedom of speech and due process of law. SOPA, PIPA, and OPEN have become a hot topic in the past month and many hope that, once Congress reconvenes on January 23, legislators will take the time to fully consider the impacts of each proposal before casting their vote.    

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