The Stop Online Piracy Act: a war on theft ... or free speech?
SOPA has been a firestorm of controversy since being introduced in October
January 8, 2012 10:00 AM
Louis Kroeck, a copywright lawyer with Anstandig, McDyer & Yurcon.
By Deborah M. Todd Pittsburgh Post-Gazette
There's little controversy over the need for the U.S. government to rein in a shadow industry that's made the idea of paying for the latest "Batman" movie or Justin Bieber album laughable to a large segment of the world.
But, despite general support for the ultimate goal, a congressional bill meant to combat websites that traffic in copyrighted intellectual property has triggered intense opposition from critics who say it could end up damaging innocent companies in the process.
The Stop Online Piracy Act, or SOPA, has run into a firestorm of controversy since it was introduced in October by Rep. Lamar Smith, R-Texas.
Under the act, the Department of Justice would be permitted to take action against websites in foreign countries, called "foreign infringing sites." Those actions would include issuing a legal injunction to have a website's domain name erased from DNS servers in the United States, effectively shutting the site down for American users.
DNS servers are used to translate domain names from words into the numbers of the Internet Protocol addresses where the sites actually exist. There are 13 DNS Root Servers in the world that store a database of every IP address and its corresponding domain name. Ten of the 13 root servers are located in the United States.
Additionally, once the Justice Department takes action against a foreign infringing site, Internet service providers, search engines and Internet advertising agencies would be required to comply with orders to remove the website's domain name from DNS servers, to remove links to the site from available search results and to halt any form of advertising for that site.
The Justice Department would submit court orders giving companies five days to cut contact with the foreign infringing sites. Penalties for failing to comply include the possibility of injunction to shut down the service provider, search engine or Web advertising agency.
That doesn't sit well with U.S. tech titans.
"I don't know what the American public would do if you shut down Facebook for a day. Everybody would have to go talk to their neighbors or something," said Louis Kroeck, a copyright attorney with the Downtown-based law firm Anstandig McDyer & Yurcon.
Concern in the tech community led social media site Facebook to join other major Internet companies Google, eBay, AOL, Twitter, Yahoo, LinkedIn, Mozilla and Zynga in November to sponsor a full page New York Times ad against the bill.
"We support the bill's stated goals -- providing additional tools to combat foreign 'rogue' websites that are dedicated to copyright infringement or counterfeiting," the letter said.
"Unfortunately, the bill as drafted would expose law-abiding U.S. Internet and technology companies to new and uncertain liabilities, private rights of action and technology mandates that would require monitoring of websites."
The House Judiciary Committee held its most recent hearing on SOPA on Dec. 16. The committee is scheduled to resume the debate when it returns from break, but has not set a date for the discussion.
SOPA supporters argue that many of the concerns are being caused by misunderstandings of the law.
Mitch Glazier, executive vice president of the Recording Industry Association of America, noted that the act would not directly target American websites and would allow owners of foreign sites the opportunity to defend themselves in federal court prior to any injunction being granted. In order to obtain a temporary injunction, a company who claims its content is being sold illegally would have to prove to a judge that the case would have a strong chance of being upheld in court.
"Everyone who understands the litigation process, including constitutional scholars, has said the bill includes the gold standard for due process," Mr. Glazier said. Additional supporters of the bill include the Motion Picture Association of America.
He also referred to an amendment to the bill that Mr. Smith added in December that states that the bill does not give tech companies the duty to monitor activities, doesn't require any new technology mandates and won't have any impact on "the security or integrity of the domain name system."
David Farber, professor of computer science and public policy at Carnegie Mellon University, said any attempt to alter the workings of the domain name system will inevitably open it up for attack from those who are blocked. He added that SOPA is also ineffective since anyone truly determined to access a pirated site can simply enter the site's IP address directly.
Mr. Farber, who sits on the board of the Electronic Frontier Foundation, an organization that advocates for free speech, privacy and consumer rights on the Internet, signed a letter endorsed by the foundation in December that said censoring websites would encourage hackers and others with bad intentions to find back door channels in.
"Censorship of Internet infrastructure will inevitably cause network errors and security problems. This is true in China, Iran and other countries that censor the network today; it will be just as true of American censorship," the letter reads.
"It is also true regardless of whether censorship is implemented via the DNS, proxies, firewalls or any other method. Types of network errors and insecurity that we wrestle with today will become more widespread and will affect sites other than those blacklisted by the American government," it reads.
Mr. Farber said the Digital Millennium Copyright Act of 1998 gives companies adequate powers to punish those guilty of copyright infringement.
In December, Sens. Ron Wyden, D-Oregon, and Darrell Issa, R-California, introduced the Online Protection and Enforcement of Digital Trade Act, or OPEN, as an alternative means to punish digital copyright offenders.
Their bill calls for search engines and domain registrars to remove foreign websites that infringe on copyrights from their databases, but places the legal burden on the U.S. International Trade Commission, an independent federal agency with investigative powers regarding matters of trade, to file a cease-and-desist order against such websites to block payments to them.
Regardless of what type of legislation is enacted, Mr. Kroeck, the copyright attorney, said the best strategy in the fight against online piracy is in services such as Spotify and Netflix, which allow access to music and videos for a fee. Those services made content more affordable than it would be if packaged separately and more desirable than pirated digital content that could be of low quality or could come with a computer virus.
"Because we have so much capital coming from our copyright industry in this country, a law like SOPA can't [stop piracy]. You really need to change people's attitudes toward piracy and toward copyright law. You need to start providing the materials they intend to pirate in a way that they're more accessible and in a way that you're adding value to those materials," he said.
If the Stop Online Piracy Act passes, he doesn't expect that many of the worst-case scenarios will come to pass but said the law's broad provisions still have no place on the books.
"How [SOPA] would actually be implemented might not be nearly as bad as it's being stated by people online, but really it could be a nightmare," he said.