Over the weekend, First Amendment impresario Floyd Abrams addressed two controversial Internet piracy bills, the Senate’s Protect IP Act (PIPA) and the House version, the Stop Online Piracy Act (SOPA). He argued that the bill, designed to stop Internet theft of intellectual property, has been denounced by critics for setting up “ ‘walled gardens patrolled by government censors.’ Or derided as imparting ‘major features’ of ‘China’s Great Firewall’ to America. And accused of being ‘potentially politically repressive.’ ” He contends, “This is not serious criticism. The proposition that efforts to enforce the Copyright Act on the Internet amount to some sort of censorship, let alone Chinese-level censorship, is not merely fanciful. It trivializes the pain inflicted by actual censorship that occurs in repressive states throughout the world. Chinese dissidents do not yearn for freedom in order to download pirated movies.”
I don’t quarrel with his assertion that it is hysterical to regard enforcement of libel and copyright infringement on the Internet as the beginning of a totalitarian state. But he misses the real point of sober-minded critics: The bill is unnecessarily overbroad and a formula for a host of undesirable and unintended consequences.
ABC News reported last month on the overbroad nature of the remedies that would be available:
Eric Schmidt, executive chairman of Google, said the bills would overdo it — giving copyright holders and government the power to cut off Web sites unreasonably. They could be shut down, and search engines such as Google, Bing and Yahoo could be stopped from linking to them.
“The solutions are draconian,” Schmidt said Tuesday at the MIT Sloan School of Management. “There’s a bill that would require ISPs [Internet service providers] to remove URLs from the Web, which is also known as censorship last time I checked.”
Harvard law professor and Supreme Court advocate Laurence Tribe (whom I don’t always agree with but who takes the Bill of Rights quite seriously and was instrumental in developing the jurisprudence that confirmed the Second Amendment is an individual right) has submitted a memo detailing the multiple ways in which SOPA runs afoul of the First Amendment. For example, “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.”And likewise: “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.”
Rep. Darrell Issa (R-Calif.) and Sen. Ron Wyden (D-Ore.) have introduced a competing bill, the Online Protection and Enforcement of Digital Trade Act (the “Open Act”), which seeks to address legitimate concerns about SOPA/PIPA and focus more specifically on the real problem without knocking down robust, protected speech in an indiscriminate fashion. Google, AOL, eBay, Facebook, LinkedIn, Twitter, Mozilla, Yahoo!, and Zynga have signed on to support this alternative to SOPA/PIPA.
The Hill recently reported on OPEN: “The draft proposal would instead authorize the International Trade Commission to investigate and issue cease-and-desist orders against foreign websites that provide pirated content or sell counterfeit goods. The ITC would have to find that the site is ‘primarily’ and ‘willfully’ engaged in copyright infringement to issue the order.” Rather than take down entire websites and potentially interfere with perfectly legitimate and protected speech OPEN, would, after a court order, “compel payment providers and online advertising services to cease providing services to the offending website. The approach comports with current copyright law and hews to the ‘follow the money’ approach favored by Google and other tech companies.”
In short, this is not a fight between protectors of copyrights and Internet anarchists. Rather, there is a legitimate policy dispute about how broad and how disruptive government enforcement powers should be when core First Amendment rights are at issue. No doubt the Motion Picture Association of America, headed by disgraced former Connecticut senator Chris Dodd, has spread plenty of money around Congress to try to give the government the bluntest, heaviest weapon to fight piracy. But that doesn’t make it good policy. And it sure doesn’t make for constitutional legislation.
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