UPDATED (1/18/2012 4:48 PM EST): Click here for update.
by Matthew L. Schafer
Below is my letter to Senator Dick Durbin [D-IL]. Senator Durbin supports the Protect-IP Act, an act that would “break the Internet.” You can contact your representative about the legislation here. Before doing so, you can also view a helpful infographic.
Dear Senator Durbin,
My name is Matt Schafer and I respectfully write you today as a constituent and a content creator to urge your opposition to the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT-IP Act) (and, similarly, the House of Representatives version, the Stop Online Privacy Act (SOPA)).
According to the Congressional Research Service, the PROTECT-IP Act authorizes the Attorney General or a private party to file an in personam or in rem action against a foreign domain name of a website that is “dedicated to infringing activities.”
The Act defines an infringing website broadly as one that “has no significant use other than engaging in or facilitating copyright infringement, circumventing technology controlling access to copyrighted works, or selling or promoting counterfeit goods or services.” This definition will lead to the censorship of non-infringing websites.
A group of ninety law professors summarized the bill: “The Act would allow the government to break the Internet addressing system. . . . It requires credit card providers, advertisers, and search engines to refuse to deal with the owners of such sites. . . . [It suppresses] speech without notice and a proper hearing. . . . The Act represents retreat from the United States’ strong support of freedom of expression and the free exchange of information and ideas on the Internet.”
This Act is another—particularly gross—example of industry skittishness over new technologies. That skittishness is illustrated well by the Betamax case, where Universal Studios, Inc. and Walt Disney Productions sued Sony out of fear that Betamax would break their businesses.
Where would recording technology be today if one more Justice sided with Justice Blackmun’s dissent, arguing to uphold the judgment against Sony? Luckily, in the copyright context of Sony Corp., the majority’s reasoning that technologies with substantial non-infringing uses do not violate the law has carried the day.
Simply, PROTECT-IP and SOPA are as broken as the dissent’s logic in Betamax. The legislation is not narrowly tailored. The legislation is vague and overbroad. Its operation outside of a true adversarial process should concern you as a member of the Senate Judiciary Committee.
Additionally, PROTECT-IP and SOPA protect large corporate interests, but do not protect creativity, foster innovation, promote entrepreneurship, or instill free speech values in the newest generation that will call the Internet home.
Despite Rep. Lamar Smith’s sideswipe at Google and its “criminal activity” in a recent hearing, the opponents of this bill are not lawbreakers–they are the new innovators. They worry incumbents because they are motivated by a different philosophy: a philosophy of sharing, collaboration, remixing, reinventing, and otherwise working towards something “new,” something “better.”
You have said, in correspondence to other constituents, “It is important to note that this legislation seeks to address a serious problem without inappropriately restricting Internet freedom.” This is simply not the case.
Indeed, these bills amount to censorship by breaking the Internet through DNS filtering. Simply, the Act will cause “catastrophic consequences for the stability and security of the DNS. By authorizing courts to order the removal or replacement of database entries from domain name servers and domain name registries, the Act undermines the principle of domain name universality – that all domain name servers, wherever they may be located on the network, will return the same answer . . . .” When the fig leave of technology is pulled away, the brutality of this approach is apparent.
This form of censorship is the very antithesis of our nation’s values. As a nation, we must be eternally vigilant against attempts to censor—whether that censorship is aimed at literary masterpieces, personal blogs, the understood or the misunderstood. As Justice Chief Justice Warren said,
It would seem idle to suppose that the Court today is unaware of the evils of the censor’s basic authority, of the mischief of the system against which so many great men have waged stubborn and often precarious warfare for centuries of the scheme that impedes all communication by hanging threateningly over creative thought. . . .
The censor’s function is to restrict and to restrain; his decisions are insulated from the pressures that might be brought to bear by public sentiment if the public were given an opportunity to see that which the censor has curbed.
The censor performs free from all of the procedural safeguards afforded litigants in a court of law. The likelihood of a fair and impartial trial disappears when the censor is both prosecutor and judge. There is a complete absence of rules of evidence; the fact is that there is usually no evidence at all . . . . How different from a judicial proceeding where a full case is presented by the litigants. The inexistence of a jury . . . is a vital flaw.
A revelation of the extent to which censorship has recently been used in this country is indeed astonishing.
PROTECT-IP and SOPA mean nothing but industry appeasement. An appeasement that would cost me and millions of other American taxpayers “$47 million over the 2012-2016 period.” An appeasement that would squelch innovation and stifle creativity. The economic and creative costs are not worth the marginal benefit. Please do not support this measure.
Matthew L. Schafer
 Such action would be similar to Google’s unilateral takedown under the Digital Millennium Copyright Act of non-infringing popular music review blogs after interested companies repeatedly complained. See generally Sean Michaels, Google Shuts Down Music Blogs without Warning, The Guardian (Feb. 11, 2010), http://www.guardian.co.uk/music/2010/feb/11/google-deletes-music-blogs
 Letter from John R. Allison, et al., Law Professors, to Members of the United States Congress (Jul. 5, 2011), available at http://www.scribd.com/doc/59241037/PROTECT-IP-Letter-Final (emphasis added).
 Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 456 (1984).
 Id. at 456.
 But see Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).
 Mike Masnick, Constitutional Scholars Explain Why SOPA & PROTECT IP Do Not Pass First Amendment Scrutiny, techdirt (Dec. 9, 2011), http://www.techdirt.com/articles/20111208/15442917016/constitutional-scholars-explain-why-sopa-protect-ip-do-not-pass-first-amendment-scrutiny.shtml (“Although the problems of online copyright and trademark infringement are genuine, SOPA is an extreme measure that is not narrowly tailored to governmental interests. It is a blunderbuss rather than a properly limited response, and its stiff penalties would significantly endanger legitimate websites and services.”) (emphasis added).
 See, e.g., Parker Higgins, The PROTECT IP Act Is Very Real and Very Bad — Call Now to Block It, EFF (Nov. 28, 2011) (“PROTECT IP is overbroad, and could be used as a tool for online censorship. Further, it creates a bad precedent internationally for fragmenting the Internet.”).
 J1mcamp, Senator Durbin’s (D-IL) Response to My Protect IP email, Reddit (Nov. 17, 2001), http://www.reddit.com/r/politics/comments/mg7fi/senator_durbins_dil_response_to_my_protect_ip.
 See supra notes 2 and 6-7 and accompanying text.
 See Eyder Peralta, Google’s Brin Says Piracy Bills Puts U.S. Censorship On Par With China, NPR (Dec. 15, 2011), http://www.npr.org/blogs/thetwo-way/2011/12/15/143786288/googles-brin-says-piracy-bills-puts-u-s-censorship-on-par-with-china. As Google’s co-founder Sergey Brin stated, “While I support their goal of reducing copyright infringement (which I don’t believe these acts would accomplish), I am shocked that our lawmakers would contemplate such measures that would put us on a par with the most oppressive nations in the world.” Id. (emphasis added).
 Letter from Allison, et al., supra note 2.
 Daniel Castro, PIPA/SOPA: Responding to Critics and Finding a Path Forward, Information Technology and Innovation Foundation (Dec. 2011), available at http://www.itif.org/files/2011-pipa-sopa-respond-critics.pdf (arguing for PROTECT-IP because “users have a poor history of using [circumvention technology] in other countries where the government restricts access to certain websites”). These “other countries” that supporters cite for the success of DNS filtering include: China, Iran, United Arab Emirates, Armenia, Ethiopia, Saudi Arabia, Yemen, Bahrain, Burma (Myanmar), Syria, Turkmenistan, Uzbekistan, and Vietnam. See Mike Masnick, The List of Internet Censoring Countries the MPAA Thinks Provide a Good Example for The US, techdirt (December 19, 2011), http://www.techdirt.com/articles/20111219/02551217124/list-internet-censoring-countries-mpaa-thinks-provide-good-example-us.shtml. On the Press Freedom Index compiled by Reporters Without Border, these “exemplars” of DNS filtering rank 171, 175, 87, 101, 139, 157, 170, 144, 174, 173, 176, 163, and 165, respectively. See Press Freedom Index 2010, Reporters Without Borders, http://en.rsf.org/press-freedom-index-2010,1034.html (last visited Dec. 19, 2011).
 Times Film Corp. v. City of Chicago, 365 U.S. 43, 66-69 (1961) (Warren, J., dissenting).
 S. 968 Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011, Congressional Budget Office Cost Estimate (Aug. 16, 2011), available at http://www.cbo.gov/ftpdocs/123xx/doc12391/s968.pdf
 “These two pieces of legislation threaten to: Require web services, like the ones we helped found, to monitor what users link to, or upload. This would have a chilling effect on innovation[,] . . . [and] give the U.S. Government the power to censor the web using techniques similar to those used by China, Malaysia and Iran.” Letter from Marc Andreeson, et al., Silicon Valley Entrepreneurs, to Members of the United States Congress (Dec. 14, 2011), available at http:// http://news.cnet.com/8301-1009_3-57342914-83/silicon-valley-execs-blast-sopa-in-open-letter.
I just spoke with Senator Durbin’s Chicago office and they indicated that he does not support SOPA. They further indicated that while they are still “clarifying the language” of PIPA, he will not support any bill that “endangers freedom of expression.” Because his name is still on PIPA as a co-sponsor, I assume that he does not believe that PIPA “endangers freedom of expression,” which is emphatically not the case. For reasons why, please read my December open letter to the Senator. (Senator Durbin’s D.C. office also confirmed that the Senator remains opposed to SOPA, but remains a co-sponsor on PIPA.)
Supporting one but not the other seems strange to say the least, as the main remaining difference between the bills is only the definition of infringing websites. As PCWorld noted, “Although the House and Senate bills are similar, SOPA is the more extreme of the two. It defines a ‘foreign infringing site’ as any site that is ‘committing or facilitating’ copyright infringement, whereas PIPA is limited to sites with ‘no significant use other than’ copyright infringement.” TechDirt said it another way, “PIPA & SOPA are (now) very similar bills, both with significant problems. In fact, the remaining ‘differences’ in the bills each have serious problems, which is why neither bill is a ‘better’ bill, since both are terrible.”
Thus, the logical conclusion is that perhaps Senator Durbin believes that PIPA’s main difference, the limitation to sites that have “no significant use other than” infringement, does not endanger freedom of expression, while a definition reaching both alleged violators and their facilitators does. Yet, as TechDirt noted, “[Under PIPA, a website] can be dedicated to infringement if the key service you offer facilitates infringement.” Thus, there is little difference even when defining infringing websites. Moreover, we cannot be certain how courts would interpret either definition, which is also reason not to settle for ambiguity.
If nothing else, both bills remain bad business, and the Senator should support neither. Currently, this is all speculation as to why the Senator can consistently support PIPA but not SOPA. Because the Senator has not released a statement, speculation will have to do for now.