Congress is currently considering a bill that threatens to alter the Internet fundamentally. The Stop Online Piracy Act (SOPA) is one of the most misguided Internet-reform efforts to emerge in years. SOPA’s purported intent is to protect American copyrighted material against piracy and counterfeiting. Unfortunately, wide application of the bill’s regulations would strangle the freedom of the Internet. SOPA would require the attorney general’s office to target any website 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 [theft of U.S. property].
“Facilitation” is the dangerous word in the targeting criteria. Facebook, Tumblr, and dozens of other popular websites could be accused of “facilitating” the spread of pirated material if one of their members happens to post a copyrighted movie or song. Under SOPA, Internet service providers would be required to block access to websites the DOJ deems guilty of such activity. Search engines would be forced to delete linkages to offending websites. Copyright holders would have the power to prevent offending websites from receiving any online payments by sending termination notices to their payment processors, without a court order. These responses are akin to the federal government taking over the entire island of Manhattan because a vendor on Canal Street is selling fake watches.
Legislation already exists that fights websites focused on piracy: the Digital Millennium Copyright Act (DMCA). The DMCA, which was signed into law in 1998, has specifically tailored sections for websites that focus on the distribution of pirated material, and requires the removal of those websites. SOPA differs from the DMCA in its broader scope and powers.
The driving industry behind SOPA is the Motion Picture Association of America (MPAA). Michael O’Leary, vice president of the MPAA, testified before Congress that, “fundamentally, this [bill] is about jobs.” Mr. O’Leary asserted that without SOPA, millions of Americans associated with the production of movies in America would lose their jobs. Support for SOPA also crosses party lines and has made for strange bedfellows.
The bill was introduced by Rep. Lamar Smith (R., Tex.), and currently has 26 cosponsors including John Conyers (D., Mich.), Peter King (R., N.Y.), and Deborah Wasserman-Schultz (D., Fla.). Representative Smith argued that we cannot “fail to take effective and meaningful action when criminals misuse the Internet. The problem of rogue websites is real, immediate and widespread. It harms all sectors of the economy.” Conyers insisted that SOPA is harmless, and accused critics of hyperbolically claiming it would transform America into a “repressive regime.” Smith and Conyers have even tried to claim that the bill would protect American soldiers, by preventing the sale of counterfeit military goods (ignoring the fact that there are already specific laws against such transactions). The clearest connection among the cosponsors of SOPA appears to be campaign donations from the movie industry — 18 of the 22 sponsors have already received substantial donations from the television, movie, and music industries in the 2012 campaign cycle. For many of these representatives, these industries are the biggest donors to their campaigns.
Yet there is growing opposition to the Stop Online Piracy Act both inside and outside Congress. Rep. Darrell Issa (R., Ca.) has stated that there is “a very broad coalition from far left to far right who realize this will hurt innovation, something we can’t afford to do. And there are other ways to accomplish what they say is their goal.” Even Rep. Nancy Pelosi (D., Ca.), has agreed that there is a “need to find a better solution than SOPA.” Outside of Congress, the leading Internet companies (AOL, eBay, Facebook, Google, LinkedIn, Mozilla, Twitter, Yahoo!, and Zynga) have protested SOPA, asserting that it would set “a precedent in favor of Internet censorship” and damage the “innovation and growth of the Internet.”
The constitutionality of the SOPA is also questionable. In Reno v. ACLU in 1997, the Supreme Court unanimously ruled that Congress had an “over arching commitment” to ensure that any bans on the Internet had to “accomplish its purpose ‘without imposing an unnecessarily great restriction on freedom of speech.’” With its wide definition of facilitating piracy enabling the suppression of entire websites, SOPA does not appear to meet this criterion.
The Stop Online Piracy Act should not pass in Congress. Its poor design would strangle free speech on the Internet, harm our economic competitiveness, and possibly betray the Constitution. It emerged out of a miasma of corporate lobbying, and hopefully the rest of Congress will see fit to send it back to the depths from which it came.
— Nathaniel Botwinick is an editorial intern atNational Review Online.