The Stop Online Piracy Act (H.R. 3261), known as “SOPA,” is scheduled for consideration at a hearing before the House Judiciary Committee tomorrow. The bill is aimed at taking down sites that allow Internet users to acquire pirated versions of original artistic content online. At a recent hearing, the ACLU expressed opposition to the bill because it would allow for the takedown of non-infringing content along with infringing content, in violation of the First Amendment.
Earlier this week, former Sen. Chris Dodd, now head of the Motion Picture Association, in a presentation at the Center for American Progress advocated in favor of new laws like SOPA that would protect movie studios against copyright infringement by foreign copyright pirates. In doing so, he quoted famed First Amendment attorney Floyd Abrams, an attorney for the studios, who advocated for new laws against pervasively infringing sites by saying: “the Internet neither creates nor exists in a law-free zone, and copyright violations on the Internet are no more protected than they are elsewhere.”
We agree with Sen. Dodd and Mr. Abrams that copyright violations on the Internet are no more protected than they are elsewhere. But the more important point is that other content on the Internet – content that is not being pirated – is just as deserving of First Amendment protection online as it is elsewhere. Why in the world should it be possible to take down original lawful content from the Internet simply because it’s accessible from a site that also provides a link to infringing content? That’s what SOPA would do – and those in the entertainment industry who want to stop online piracy ought to help figure out how to target infringing content more precisely or else get used to the unacceptable result of continuing to lose out on profits to online pirates.
Of course we should try to do something to protect original online content from those who would try to steal such works for their own profit. But we must also do whatever we can to make sure ALL online content gets the protection of the First Amendment, which states that “Congress shall make no law . . . abridging the freedom of speech.’” Unless both concepts are given equal attention, any law attempting to protect copyrighted material will either fail or be ineffective.
The original SOPA bill introduced in Congress would have allowed the issuance of a court order allowing the takedown of a site that facilitated copyright infringement. In other words, if a site provided a link to pirated content, it would be subject to an order – which order would then be presented to Internet Service Providers (ISPs) and search engines to implement the takedown. But Internet sites contain lots of information and even those sites that facilitate online piracy provide access to lots of perfectly lawful content. And the original SOPA bill would do nothing to prevent the lawful content from disappearing along with the infringing content. Moreover, because of the potential penalties involved, ISPs and search engines would be motivated to be over-inclusive in implementing the takedown orders. The result would be the banishment of huge amounts of lawful content. The bill could have taken a more measured approach simply by telling courts to define more narrowly the scope of content to be removed.
A manager’s amendment to SOPA will be offered at the hearing tomorrow. The amendment makes a number of changes that would help to narrow the amount of lawful content impacted by the takedown orders. But the changes don’t go far enough. It will still be likely that ISPs and even search engines will end up removing perfectly legal content – content that is protected under the First Amendment to the Constitution – from the Internet.
Members of the House Judiciary Committee in particular need to hear from their constituents that there is a way to slow down online piracy without restricting the multitude of voices available on the Internet. Tell Congress to oppose SOPA and craft a bill that more narrowly targets pirated material online.