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Pegoraro: Online Piracy Act Is Copyright Overreach

If you were curious how Congress could possibly top the break-the-Internet absurdity of the PROTECT IP Act — which would make it a crime to route Internet users to sites deemed to be fueling copyright infringement — you can stop wondering. The 2.0 version of this bill is now ready for your contemplation.

On Oct. 26, the House equivalent of this bill emerged — H.R. 3261, the Stop Online Piracy Act — and the break-the-Internet concept is now bigger and badder than ever.

SOPA, sometimes incorrectly referred to as the E-PARASITE Act — a legacy from the draft language that proposed the name Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation — doubles down on most of PROTECT IP’s flaws and adds some of its own. Three flaws top that list.

1. It would target far more sites.

In Title 1, Section 103, SOPA defines sites “dedicated to theft of U.S. property” in sweeping terms. Where PROTECT IP limited its effect to places having “no significant use” beyond copyright infringement, this bill encompasses sites with “only limited purpose or use” outside of violating copyright laws. (“Limited” is one of those wonderfully elastic words — notice the ever-longer yet still “limited” copyright terms granted to artists and creators?)

Worse yet, that section also declares that a site can be found liable if it’s “taking, or has taken, deliberate actions to avoid confirming a high probability” of copyright infringement by its users. To interpret that Rube Goldberg-esque legalese properly, read it backwards— sites can be guilty if they don’t act as copyright cops themselves. That inverts the logic of the Digital Millennium Copyright Act, which holds sites immune from liability if they respond promptly to requests from copyright holders to take down allegedly infringing material.

2. It would make it easier to put innocent sites out of business.

There’s something to be said for targeting the economic underpinnings of abusive sites — the only way we’ll ever get rid of spam is by making it unprofitable. But that expanded definition of infringing sites leads to a far more sweeping punishment — by granting copyright holders a private right of action to compel payment processors and advertising services to cut off those sites.

This formula could have ensured the asphyxiation of YouTube and many other sites with user-generated content. Yes, SOPA allows countersuits by those sites — but many startups simply don’t have the cash to fight Hollywood’s lawyers. Without the speed bump of a court hearing to judge the merits of these demands, most of them would have to capitulate or close first.

3. It bans attempts to circumvent the bill’s domain-name blocking measures.

Under section 102 of SOPA, the U.S. attorney general could seek an injunction to stop individuals or sites from offering “a product or service designed or marketed for the circumvention or bypassing” of its selective disconnections of offending sites. But a site that can route around government interference with the domain name system here can also do the same to blocks imposed by regimes overseas.

So any act that criminalizes anti-SOPA tools can also easily target tools developed by “hacktivists” — sometimes with support from the U.S. government — to defeat the Internet censorship of countries such as Iran and China.

In the bargain, SOPA would make it a felony to stream copyrighted content online. Unlike PROTECT IP, it folds in a version of a poorly considered proposal to extend criminal punishment to the “public performances” of copyrighted material online — closing a gap in current law but also opening up some unpleasant consequences, depending on courts’ interpretations.

In other respects, SOPA is merely no smarter than PROTECT IP. Neither bill requires Internet providers to block access to a blacklisted site by its numerical IP address. And neither appears to require search engines to remove the text of a blacklisted site’s address, only direct links to the site. In both cases, anybody with a minimum of online experience could easily reach the allegedly offending site.

The latter loophole may be a nod to this clause at the start of SOPA: “Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the
First Amendment to the Constitution.”

Good idea. But online, domain names and hyperlinks are how we speak — ask any politician, company or trade association that’s registered every domain name with an insulting variation of its own moniker.

Sadly, ignoring truths such as those is standard operating procedure in too many tech policy bills.

That’s the most frightening thing about SOPA and the annual appearance of bills like it: what they suggest about the technological competence of our elected representatives.

Rob Pegoraro writes about consumer technology for the Consumer Electronics Association’s Tech Enthusiast site and Discovery Communications’ Discovery News. From 1999 to 2011, he wrote the Washington Post’s consumer tech column.

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