Even without DNS provisions, SOPA and PIPA remain fatally flawed

By Timothy B. Lee

The special interests behind the Stop Online Piracy Act and the Protect IP Act are in full retreat, throwing the bills' most controversial provisions overboard in a desperate attempt to stop the entire bill from sinking. Realizing that proposals to create a DNS-based blacklisting scheme had become politically radioactive, the bills' sponsors—Rep. Lamar Smith (R-TX) and Sen. Patrick Leahy (D-VT), respectively—have pledged to drop these provisions. On Tuesday, even the Motion Picture Association of America declared that DNS filtering was "off the table" for this year's legislation.

So with the DNS-blocking provisions dead, are today's protests much ado about nothing? Not by a long shot. While the DNS language posed the gravest danger to free speech online, the bills are full of provisions that trample free speech, due process, and online innovation.

It's hard to know exactly what will be in the final version of these bills, since they are still due for several rounds of debate and amendment before they could reach President Obama's desk for a signature. But the latest versions of the bill we could get our hands on—the version of PIPA reported out of the Senate Judiciary in May, and Rep. Smith's "manager's amendment" to SOPA from December—show a number of remaining problems, and we've gotten no commitments from the sponsors to address these remaining issues.

Both PIPA and SOPA feature inadequate judicial oversight, allowing injunctions to be granted after a single, one-sided court hearing. Both give the power to seek injunctions not only to the attorney general but also to private copyright holders. And SOPA has a provision, not included in PIPA, that would make unauthorized streaming of copyrighted content a felony punishable by up to 10 years in prison.

Due process problems

The Supreme Court has ruled that the First Amendment prohibits prior restraint—limiting access to speech before a court has provided due process to the defendant. In particular, as a letter signed by dozens of law professors pointed out, speakers are entitled to tell their own side of the story to the judge before their content is taken down. And if a defendant loses, he is typically given the opportunity to exhaust his appeals before his speech is censored.

The sponsors of SOPA and PIPA appear to have ignored these concerns. Both bills allow the attorney general (and, in some cases, private parties—more on that later) to request a takedown of an overseas site based on the legal fiction that the website, rather than its owner, is the defendant. Because a website owner isn't technically a party to the case, the judge can issue an injunction before he has even heard the defendant's side of the case. And the attorney general can have the target website cut off from access to search engines, advertising networks, and credit card payments.

Website owners can intervene to overturn an injunction, but the bill envisions this adversarial process happening after the injunction has been issued and the site has already been removed from search engines and had its funding cut off.

To see how this can burden free speech, we need only look at the case of rojadirecta, which was seized by the government last year. The Spanish sports site has been declared legal under Spanish law, but it has taken the site months to get a hearing in an American court. Whether or not the seizure of rojadirecta is declared legal or not, the site should have had its day in court before it lost its domain. SOPA and PIPA would make this problem worse by extending similar procedures to ad networks, payment networks, and search engines.

Private right of action

The seizure of rojadirecta.com was part of Operation In Our Sites, an aggressive anti-piracy operation authorized by the 2008 Pro IP Act. In Our Sites is a law enforcement effort; government officials take suggestions from copyright holders on which sites to target as part of Operation in our Sites, but they evaluate them independently and don't go after every site suggested by copyright holders. For example, out of one batch of 130 industry suggestions, the feds decided that only 82 of them warranted enforcement action.

No similar check would exist for the ad network and payment processing provisions of PIPA and SOPA. Any "qualifying plaintiff," defined as anyone with standing to bring a copyright lawsuit against the target site, would have access to the same one-sided process to seek an injunction. And it could take that injunction to ad networks and payment processors to cut off the flow of funds to the target site. And all of this could happen before the target site had the chance to give its own side, to say nothing of appealing the judge's decision.

This is important because major content producers don't have a great record of restraint when it comes to exercising takedown powers. Last month we covered UMG's claim that it has the power to take down YouTube videos it doesn't own. And the month before that, Warner Brothers admitted that it had sent automated takedowns under the DMCA against content it didn't own and that no Warner employee even looked at.

Neither SOPA nor PIPA have any penalties for copyright holders who abuse their new powers. The Digital Millennium Copyright Act provides for penalties (albeit fairly toothless ones) against copyright holders who abuse the powers provided by its notice-and-takedown rules. In contrast, websites targeted by bogus SOPA or PIPA injunctions would have no recourse.

Felony streaming

Last year, Sen. Amy Klobuchar (D-MN) introduced legislation that would ratchet up the penalties for unauthorized streaming of copyrighted works. Under her bill, you could face up to five years in prison if you show 10 or more "public performances" over the Internet in a 180-day period, and the total retail value of the "performances" exceeds $2500.

When Rep. Smith introduced SOPA, he incorporated a lightly modified version of Klobuchar's bill. His version sets the bar even lower than Klobuchar's. Streaming even one copyrighted work subjects you to liability if it has a retail value of at least $1000. And any streaming of unauthorized copyrighted material "for purposes of commercial advantage or private financial gain" is subject to punishment.

Noted copyright scholar Justin Beiber has called for Klobuchar to be "locked up" for proposing the felony streaming bill. It's not clear exactly what this section of the bill would prohibit (some have suggested the videos that made Bieber famous would have made him a felon, since he sang copyrighted songs without getting licenses for them), but 5-year jail terms seem excessive in any case.
Kill bill(s)

The sponsors of these bills and their allies in the content industry have employed a savvy negotiating strategy. They began with a bill that contained every item in their anti-piracy wish list. This has allowed them to play the role of reasonable compromiser each time they drop a noxious provision from a bill. Yet what remains is still a serious threat to Internet freedom.

In recent months, each new revision of the bills has been slightly less awful than the ones that came before, and they're likely to continue that process in the coming weeks, hoping they can water the bill down enough to mollify the bill's critics.

But we think SOPA and PIPA are beyond saving. It was negotiated in a smoke-filled room with minimal input from the Internet community, and its core provisions are flatly inconsistent with the values of the Internet. Congress should stop considering SOPA and PIPA for this session. They may wish to consider the more reasonable (but still far from perfect) OPEN Act as an alternative. Or if that doesn't satisfy Hollywood, they should spend the next few months brokering a serious conversation between Hollywood and the Internet community. Then maybe all the parties can come back in 2013 with a new proposal that doesn't endanger online freedom.