The Stop Online Privacy Act (SOPA) — a bill currently before the House Judiciary Committee — is a threat to America’s ability to lead the Internet, and must be defeated before it has a chance to damage America’s ability to generate jobs and economic growth online.
It is a fine idea to combat foreign companies infringing on American copyrights, patents and trademarks. Especially when the counterfeit goods are potentially hazardous, as in the case of knockoff drugs, it is laudable for government to intervene to keep them off our shores. That is what Title 2 of SOPA is about, and that is an entirely different matter.
The problem with SOPA is with Title 1, Sections 102-105, from a recent House Judiciary Committee draft. This portion of the bill has little to do with protecting American interests abroad or with punishing lawbreakers. Instead, this portion of SOPA regulates the Internet at home. It is a framework for domestic censorship only tangentially related to intellectual property rights.
There are three reasons this Internet censorship will do far more harm than good. The first is that the Internet is global, mitigating our power to accomplish our intent. Should America begin to apply censorship to our domestic DNS system (DNS being the way that Internet names are translated into numeric addresses), the rest of the world will reject those changes. We don’t apply Communist Chinese censorship, and the rest of the world won’t apply our censorship. Foreign infringers will not be affected by our actions.
So instead of damaging those foreign outlets trampling American property rights, our ability to lead the Internet that we build will be shattered. Once our DNS grid becomes compromised by political pressure, the rest of the world will have no choice but to work around us, and create alternate DNS architecture that cannot be affected by our government. We will be permanently cut out of the loop, and overnight we will go from a leader to a follower online. That’s the second reason to oppose SOPA.
Third, the domestic consequences of SOPA will be damaging to law-abiding Americans. SOPA effectively rigs the system such that anyone targeted by the government under this law would be guilty until proven innocent. Should the attorney general decide to target your entire domain for censorship, he will only need to get an injunction against you, with an email dropped your way considered sufficient warning of the coming action, as described in Section 102(b)(3)(A)(i).
Additionally, the system is rigged against well-meaning Internet service providers who suffer economic or technical hardship from the censorship requirements of the bill. Per Section 103(d)(4)(C), should the government order an ISP or advertising service to initiate action which is unreasonable technically or economically, the burden of proof is on the private sector to show that the government is wrong. Showing that the government is issuing crazy orders is merely an “affirmative defense,” which means smaller service providers could be completely wiped out by SOPA, if they’re unable to afford to comply with censorship orders or to challenge those orders as unaffordable. SOPA will kill jobs.
SOPA’s Internet censorship provisions will kill jobs and kill America’s Internet leadership, but SOPA can’t kill foreign infringement of American property rights. In the Internet age, copyright, trademark and patent issues are important to address by making trade-offs that balance the interests of all stakeholders. Everyone takes a little bad with a little good, and fairness is achieved. SOPA’s censorship, however, is all bad with no good. Nobody wins, except those who want the government to have broad regulatory power over the Internet.
There are alternative to censorship for defending America’s interests abroad. The Unlawful Internet Gambling Enforcement Act is the model to follow. There was no need to censor anything for the online poker market in America to be reduced from a bustling world competition to a few defiant firms. All it took to make trouble for online gambling houses was to attack the funding. The UIGEA is a successful model that could be applied to create a working, effective intellectual property enforcement law. Darrell Issa would do well to emulate it when he proposes his own SOPA alternative.