Guest Colum by Travis Crowe
I think at this point, we all know what SOPA and PIPA are, but in case you’ve been living under a well-ventilated mountain since November, I’ll offer a very truncated breakdown.
Essentially, SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act) are the respective U.S. House and Senate twins that would provide increased power and scope to the U.S. government to shut down online resources sharing in what is loosely defined as “copyrighted intellectual property and counterfeit goods.”
This sounds like a great thing. After all, those dirty foreigners have been stealing U.S. IP since the beginning of time and domestic legal forces have been virtually powerless to stop them, right? Not so much. If that were the case, American Internet entrepreneurs would not stand lock-step against these intrusive and outrageous proposals.
The biggest arguments against these measures are the possible scenarios created by the legislation. Sites like YouTube, Flickr, Etsy, Tumblr and others featuring user-generated content could be completely erased by Hollywood or music industry lobbyists in accordance with the federal government if very weak findings are reported, according to bill language.
In comparison, the 1998 DMCA (Digital Millennium Copyright Act) includes a safe harbor protection that shields sites from shutdown and other legal ramifications if they comply with a takedown request of the specific content.
Unfortunately, SOPA would override this provision and it would be the responsibility of these sites to babysit users in order to ensure that no infringement is taking place. Under SOPA, some of the great digital innovations of our time could be completely eliminated in favor of a Chinese-style “great firewall.”
Since the SOPA/PIPA situation had become a common worldwide discussion, many scholars have taken the opportunity to also point out glaring legal and constitutional issues associated with the acts. In particular, professor Laurence H. Tribe, who teaches Constitutional law at Harvard Law School, wrote a lengthy open letter on SOPA that brought to light issues that most hadn’t even considered in their opposition.
First, Tribe said, SOPA denies due process to entities in the accusatory process by copyright holders, trampling over prior restraint and disallowing a discussion regarding a site’s right to exist.
Specifically, he pointed to the Supreme Court ruling in Nebraska Press Association v. Stuart (1976), which states “prior restraints on free speech and publication are the most serious and least tolerable infringement on First Amendment rights.”
This is interesting, considering many people hated these poorly written bills before realizing that they were probably unconstitutional.
Regarding definitions of what could cause a site to be shut down, Tribe also pointed out that in Section 103(a) of SOPA, a site is considered part of “dedicated theft to U.S. property” if it is considered to “enable or facilitate” infringement by a third party.
Remember the safe harbor clause in the DMCA? This is the part where that becomes meaningless under SOPA.
Professor Tribe would go on to state that the First Amendment demands special precision in regulations placed on expression. If laws that affect a person’s expression are not carefully tailored to the situation at hand, it may have a “chilling” effect on speech. This could cause people to censor their own speech, even though they are within their constiutional rights to speak freely.
Also, there is the issue of third parties on sites causing the demise of an organization that they have no personal responsibility in the administration of. Facebook alone boasts more than 800 million active users, almost all of whom are not professionally affiliated with Facebook as a company.
Should Facebook be held liable for what each user contributes to a public posting board? Doing so would prove points stated by all SOPA and PIPA detractors, that these bills advocate unchecked censorship of our Internet activities.
Though SOPA and PIPA are all but dead in their original forms, I think it’s important to think about what we’ve learned about political values in the digital age from the historical fight. Americans don’t seem to be very amused at the idea of lobbyists writing bills to favor their industry in order to essentially trash another, especially when free speech is involved.
Chris Dodd, chief lobbyist for the Motion Picture Association of America and former U.S. senator, is facing serious allegations of bribery after an angry rant threatening members of Congress who received campaign donations from the MPAA and voted against these bills.
My biggest disappointment, however, is that we’ve allowed our representatives to be so out of touch with the world we know and live in, and the many members who waited for overwhelming public opinion one way or another to make up their mind – you folks are just as bad as SOPA sponsor Lamar Smith (here’s to looking at you Dr. Dan).
