by Matthew L. Schafer
On Wednesday, the House Judiciary Committee held a hearing on H.R. 3261, the Stop Online Piracy Act (“SOPA“). The House Judiciary Committee hosted six witnesses, five of which testified in favor of the law, one of which testified against the law. One person familiar with the industry told LWR that the hearing’s unbalanced panel was “invidious.”
On the side of SOPA was Maria Pallante, the Register of Copyrights at the U.S. Library of Congress, John Clark, the Chief Security Officer and VP of Global Security at Pfizer, Michael O’Leary, the Senior Executive Vice President of Global Policy and External Affairs at the MPAA, Paul Almeida, President of the Department of Professional Employees at AFL-CIO, and Linda Kirkpatrick, Group Head of Customer Performance Integrity at MasterCard.
The lone opposition came from Katherine Oyama, Policy Counsel at Google.
As Google noted, its loneliness at the table is not indicative of a lack of opposition to SOPA. Indeed, Google, along with, AOL Inc., eBay Inc., Facebook Inc., LinkedIn Corporation, Mozilla Corp., Twitter, Inc., Yahoo! Inc., and Zynga Game Network, sent a letter to the House Judiciary Committee a day before the hearing to protest SOPA.
“We support the bills’ stated goals — providing additional enforcement tools to combat foreign ‘rogue’ websites that are dedicated to copyright infringement or counterfeiting,” the letter stated. “Unfortunately, the bills as drafted would expose law-abiding U.S. Internet and technology companies to new uncertain liabilities, private rights of action, and technology mandates that would require monitoring of web sites.”
Earlier this year, over 100 law professors sent a letter to the Senate attacking the Protect IP Act, SOPA’s counterpart in the Senate.
“The Supreme Court has made it abundantly clear that governmental action to suppress speech taken prior to ‘a prompt final judicial decision . . . in an adversary proceeding‘ that the speech is unlawful is a presumptively unconstitutional ‘prior restraint,'” the law professors said, explaining that Protect IP would operate as a prior restraint.
On OpenCongress, a non-profit, non-partisan public resource that provides the public with access to bills currently before Congress, is one of the coalition of websites that are participating in American Censorship Day to protest the SOPA hearing. On its website, which allows users to vote on whether they support or oppose bills in Congress, SOPA has a 2% approval rating. Ninety-eight percent oppose the bill.
Other websites participating in American Censorship Day include: Reddit, MetaFilter, 4chan, Mozilla, Public Knowledge, Electronic Frontier Foundation, Free Software Foundation, Free Press, Wikimedia Foundation, Torrentfreak, Boing Boing, Creative Commons, Grooveshark, Demand Progress, Hype Machine, Techdirt, Irregular Times, Engine Advocacy, Center for Democracy and Technology.
According to OpenCongress, SOPA would:
[E]stablish a system for taking down websites that the Justice Department determines to be dedicated to copyright infringement. The DoJ or the copyright owner would be able to commence a legal action against any site they deem to have “only limited purpose or use other than infringement,” and the DoJ would be allowed to demand that search engines, social networking sites and domain name services block access to the targeted site. It would also make unauthorized web streaming of copyrighted content a felony with a possible penalty up to five years in prison.
Some organizations have been less kind to the bill. Free Press, for example, a non-profit, non-partisan media reform organization, said in its “take action” boilerplate language that “[t]his legislation gives corporations the power to blacklist websites at will. And it violates the due process rights of the thousands of Internet users who could see their sites disappear.”
Evidently, the House Judiciary Committee declined to give voice to the majority of these concerns, asking only Google to attend the hearing. Google, after being attacked in opening statements by Committee Chairman Lamar Smith [R-TX], expressed concerns that SOPA would undermine the Digital Millenium Copyright Act Section 230, which prevents online service providers from being sued for the actions of the users of their services. Many credit Section 230, which was passed along with the rest of the DMCA in 1996, with fostering the Internet as we know it–open, diverse, and safeguarded from intermeddling to a degree.
SOPA is broken. The chilling effect that this law will create is incomprehensible in its magnitude. The legislation is not narrowly tailored. Completely law abiding websites could be swept into its broad language. Moreover, a judge has the unilateral ability to blacklist a website. Moreover, the free speech concerns here are no doubt tangible and probable. Search engines would be required to censor search results, for example.
SOPA may protect large corporate interests, but it does not protect creativity, foster inovation, promote entrepreneurship, or enstill free speech values in the newest generation that will call the Internet home. This bill is bad law in the making.
Moreover, despite Rep. Smith’s sideswipe at Google and its “criminal activity,” the supporters of this bill are not law breakers–they are the new innovators. They concern incumbents because they are motivated by a different philosophy: a philosophy of sharing, collaboration, remixing, reinventing, and otherwise working towards something “new,” something “better.”
As one person associated with the American Censorship Day movement told this author when he asked permission to post the infographic below, “In my world, you wouldn’t even have to ask.”