What’s so wrong with SOPA?

Yesterday, a friend started a long discussion on Facebook (well, long for that venue) by asking where exactly the censorship happens within the text of the Stop Online Piracy Act (SOPA). He’s an intelligent, caring man, and to his credit, he had gone to supplement secondary sources by reading the text of the bill. He abhors the theft of intellectual property that happens across the internet, and he sees a need for copyright enforcement. Based on his reading of the bill, he believes that it sets out a valid enforcement mechanism in its process of notification and counter-notification between rights holders and web services that support violators. He’s wrong about that, and I’m documenting my own contributions to that discussion (and only my contributions, lacking permission from others involved to copy their statements) to say here as clearly as I can why I disagree with him.

In response to my friend’s initial question — what in the bill’s provision makes it censorship — I posted this quote from an open letter by international human rights organizations posted by the Center for Democracy and Technology: “SOPA would require that web services, in order to avoid complaints and lawsuits, take ‘deliberate actions’ to prevent the possibility of infringement from taking place on their site, pressuring private companies to monitor the actions of innocent users.” I also noted that SOPA is “a de facto prior restraint, inducing site owners to take up the role of censor to avoid legal attack,” backed up by a link to FindLaw as background on prior restraint.

My friend responded that the text of the law doesn’t explicitly require web services to take action against a violator unless they want to opt out of its counter-notification and litigation provisions. I replied, “That’s the de facto part. It *forces* site owners to monitor and it induces them to pre-emptively block, otherwise they’re subject to legal claims, even where the use is allowable under fair use or other provisions. It makes site owners do the work of the rights holders watching over their content and taking steps where their rights are violated, which they already can do.” He also objected to my claim that SOPA constitutes prior restraint, claiming that it’s limited to requirements for licenses to publish, and I replied, “The license required in Olde Englande was the genesis of prior restraint, but it’s been extended — and rightly so — to prohibit any action to prevent publication. The fundamentals of copyright enforcement have long required response to published material rather than prevention of publication. SOPA just shifts that burden to systems that carry the signal rather than to courts or rights holders.”

I awoke this morning to find that the argument had continued while I slept, with a lot of talk about economic effects and costs of enforcement. My friend dismissed the projected cost of the bill as a tiny amount within the scope of the U.S. government budget. I replied, “You’re considering only the cost to the U.S. government. The cost to the economy of all the notifying and counter-notifying is significant, as is the risk created by the uncertainty around how all that will shake out.” In terms of principle rather than practicality, I questioned my friend’s assertion that SOPA gives web services immunity from prosecution provided they comply with its notification process: “That’s exactly where it becomes an extra-judicial process for judging free-expression cases, because it forces the resolution into this mystery process, and that’s a direct violation of prohibitions against prior restraint, as the Tribe analysis [linked below] points out. The attempt to force non-U.S. residents to accept U.S. jurisdiction through this extra-judicial wrangling is particularly nasty icing on the rotten cake beneath. You’re right that copyright violations should be pursued. This way of doing that doesn’t meet requirements for strict scrutiny imposed on anything that limits free expression, because it’s not narrowly tailored to address the compelling government interest involved without collateral effects, of which it has MANY. I’m not even sure how compelling the *government* interest in this case is. Its copyright enforcement powers are at stake, but the compelling interest is on the side of the rights holders, so the expression limits are really in service to private interests, which also stinks.”

He sees a compelling interest in enforcement of copyright law and in the economic cost of IP theft. I agreed that the cost is “significant, and it needs to be addressed. That much is agreed. The solution has to work within long-settled first amendment law, though. I think a change that might do it would be to submit notifications of violation *to a court with appropriate jurisdiction* rather than to the companies handling the data traffic and have that court issue the order for termination of services to the violator. That gives appropriate consideration to the free-expression issues involved in the specific case. It also gives the resolution the force of actual law instead of some cobbled-together administrative procedure between the companies working in the area. The problem with SOPA (well, the main one) is the way it empowers paperwork between private companies to enforce law, which ain’t how it’s done around here, thank goodness.”

Lacking a legal education to validate that my proposal would conform to Constitutional law, I won’t promote it past posting it here. Another friend provided a link on Scribd to analysis by someone who DOES have the legal chops to comment, Harvard Law Professor Laurence Tribe, which lays out the arguments in a clear and compelling way.