Posted: December 16th, 2011
By Jason Weber *
In the past year, the Internet has been used to do some amazing things. Pro-democracy advocates used social networking to further populist uprisings during the Arab Spring. Iron-fisted governments manipulated the same tools to silence dissent and isolate citizens seeking freedom. While the United States has consistently portrayed itself as a voice for a free and open Internet, SOPA, a bill circling in the House of Representatives, is sending a different message to tech giants and human rights activists around the world.
SOPA stands for the Stop Online Piracy Act. Along with its sister bill in the Senate, the Protect IP Act, SOPA has laudable goals: to protect intellectual property rights and stop online piracy. To accomplish these goals, Section 102 of the bill gives the U.S. Department of Justice broad power to force U.S.-based online search engines, payment providers, and advertising networks to stop doing business with, and block access to, any foreign website guilty of infringing on a U.S. copyrights or patents. Any U.S.-based internet company that fails to use “technically feasible and reasonable measures” to remove infringing content within five days of receiving a court order can be subject to monetary sanctions.
Section 103 of SOPA also allows for third-party lawsuits brought by any intellectual property right holder harmed by infringing activity. These “qualifying plaintiffs” can directly seek court orders to shut down foreign infringing sites or to force U.S.-based search engines, payment providers, and advertising networks to cut ties with an infringing site. Finally, section 201 of SOPA makes it a felony to stream any copyrighted works, with a maximum penalty of up to five years in prison.
Proponents of SOPA include a bipartisan group of Republican and Democratic House members, 43 state attorney generals, powerful lobbies such as the Motion Picture Association of America, the U.S. Chamber of Commerce, and the AFL-CIO, as well as tech giants like Microsoft and Apple. These advocates claim that the bill is about protecting American jobs and furthering economic prosperity. According to the U.S. Chamber of Commerce, American businesses lose about $135 billion in revenue each year from infringing products and intellectual property pirates. Further, while the U.S. has current copyright enforcement laws like the DMCA, they all lack measures to reach foreign sites that infringe on U.S. copyrights and patents.
Critics of the bill, however, think it is overly aggressive, overly broad, and amounts to unconstitutional censorship. Tech giants including Google, eBay, Facebook, and Twitter sent a letter to Congress praising SOPA’s goals, but warning that it will expose lawful companies to uncertainty and costly litigation while stifling innovation and undermining job growth. Eleven bi-partisan members of Congress have also sent an opposition letter expressing similar concerns about the effect of the bill on the internet’s ability to foster economic growth. Zoe Lofgren (D-CA), whose district includes Silicon Valley, is leading the congressional backlash against the bill, calling it “the end of the Internet as we know it.” A number of international groups have also attacked the bill, claiming it undermines human rights and will erect an American version of the Great Firewall in China. For a detailed overview of how SOPA might stifle innovation, watch this video posted by Lifehacker.com.
While the House continues to hold hearings and debate the bill, it is uncertain whether SOPA will become law. A number of websites, including the Electronic Frontier Foundation, have launched an awareness campaign and held American Censorship Day on November 16 to rally public sentiment against the bill. International hackers Anonymous took their opposition a step further and threatened Congress not to pass the bill. However, given the strong lobbying power of SOPA’s proponents and its support from ranking House members, it is likely that the bill will pass in one form or another.
* Jason Weber is a second-year law student at Wake Forest University School of Law and a staff member on the Journal of Business and Intellectual Property Law. He holds a Bachelor of Arts in Political Science from Hope College and served with Teach for America prior to entering law school. After graduating in 2013, Mr. Weber intends to practice in the areas of education or community and economic development law.