This document is a guide to the Stop Online Piracy Act as proposed in the United States House of Representatives. Stop Online Piracy Act (SOPA), H.R. 3261, 112th Cong. (2011).\u00a0It represents our notes as we sought to understand exactly what it does and how it does it \u2014 along with our corresponding sense for why its principal mechanisms make for poor law.\u00a0 Our aim is for this analysis to be useful to anyone wanting to understand the Act \u2014 whatever his or her point of view may be on technology or intellectual property policy.<\/p>\n
According to its advocates, SOPA will strengthen copyright in the United States by establishing a number of public and private tools to hinder infringement by international \u201crogue\u201d sites previously unreachable by U.S. law. The Act also includes a number of independent provisions targeting the sale and dissemination of prescription drugs and military materials and equipment.<\/p>\n
1. Copyright enforcement against websites, foreign & domestic. <\/strong><\/p>\n The bulk of SOPA is a set of public and private mechanisms intended to give American copyright holders tools to combat offshore infringers. The Attorney General\u2019s office, when armed with a court order (the granting of which doesn\u2019t appear to have a standard beyond the Act\u2019s definitions \u2013 the court \u201cmay\u201d grant an order when requested Id<\/span>., at \u00a7 102(c)), will be able to demand the elimination of access and funding to infringing sites on behalf of copyright holders. When acting alone, copyright holders can use these mechanisms to cut off funding.<\/p>\n Public Remedies <\/em><\/strong>(H.R. 3261, 112th Cong. \u00a7 102 (2011).)<\/strong><\/p>\n SOPA gives tools to the U.S. Attorney General to combat \u201cforeign infringing sites.\u201d Id<\/span>., at \u00a7 102. The definition of this term is unusual; a site with a domain name registered outside the U.S. (e.g. through a non-U.S. domain name registrar) seems to count as \u201cforeign,\u201d even if it\u2019s run by an American company and hosted on U.S. soil. Id., at \u00a7 101(5)-101(8).\u00a0 As an initial matter, the site must be \u201cU.S. directed,\u201d although virtually all sites not actively blocking U.S. IPs would fall under this category. See<\/span> id<\/span>. at \u00a7 102(a)(1). Infringement does not need to be direct, and instead may be imputed on sites that merely \u201cfacilitat[e] the commission\u201d of copyright infringement . Id<\/span>. at \u00a7 102(a).\u00a0 The order can ask the operator of the targeted site to \u201ccease and desist from undertaking any further activity as a foreign infringing site.\u201d Id<\/span>. at \u00a7 102(b)(5), and then the Attorney General can send additional copies of the order to \u201csimilarly situated entities\u201d with permission of the Court \u2013 that is, others can fall under the Court\u2019s power without previously having been given notice of a proceeding against them.\u00a0 Id<\/span>. at \u00a7 102(c)(1).<\/p>\n But these provisions are likely not the real force of the law, as fully overseas infringing sites may try to ignore a U.S. court order.\u00a0 The law\u2019s real force is focused domestically. Once a foreign infringing site has been made the subject of a court order, the Attorney General may apply the court order not only at the site but at American companies that occupy the space between the infringing site and an American end user\u2019s browser- specifically, service providers, search engines, payment network providers, and advertising networks. Id<\/span>. at \u00a7 102(c)(2). The court order may require these entities to take all \u201ctechnically feasible and reasonable measures\u201d to prevent access or payments to foreign infringing sites. Id<\/span>. Those intermediaries would, it appears, not have been given notice or otherwise involved in the proceeding by which the Attorney General obtained the original order that would then bind them.<\/p>\n There are a number of specifics mentioned in the bill as \u201ctechnically feasible and reasonable measures.\u201d H.R. 3261 at \u00a7 102(c). For service providers 1<\/sup><\/a>, this includes \u201cmeasures designed to prevent the domain name of the foreign infringing site (or portion thereof) from resolving to that domain name\u2019s IP address\u201d Id<\/span>. at \u00a7 102(c)(2)(A)(i). DNS blocking is one of the techniques that China uses to prevent access to dissident websites, and has serious technical ramifications.\u00a0Sandia National Laboratories published<\/a>a letter, after being asked for comment, characterizing the proposed DNS filtering as \u201cwhack-a-mole.\u201d ISOC also released<\/a> a paper detailing how DNS blocking would undermine the Internet architecture.\u00a0Under a SOPA-based order, Internet search engines are to prevent an allegedly infringing site from being served to users as a direct hypertext link. Id. at \u00a7 102(c)(2)(B). Payment providers (like MasterCard or PayPal) must stop completing payment to the payment account used by the site. Id<\/span>. at \u00a7 102(c)(2)(C). Finally, advertisers must complete three separate actions: cut off any ads that they were serving to the site, cut off any advertisements for the site served on other websites, and finally, cut off payments stemming from advertisements. Id<\/span>. at \u00a7 102(c)(2)(D).<\/p>\n SOPA critics point to the vagueness of the phrase \u201ctechnically feasible and reasonable measures\u201d when questioning the burden the Act will place on intermediaries. An elephant in the room is whether this requirement would necessitate active monitoring of all content to prevent access to previously-noticed infringing sites and\/or content. It is notable that payment providers and advertising companies alone are explicitly exempt from having a \u201cduty to monitor\u201d future infringing activity. H.R. 3261 at 102(c)(2)(D)(ii). The Act is silent on whether service providers and search engines have a duty to monitor, which, by implication, may be said (and surely would be argued) to render such a duty.<\/p>\n SOPA encourages such a broad reading by granting immunity to parties who act to limit access to copyrighted materials and by reserving the possibility of litigation for parties that fail to act. See<\/span> id<\/span>. at \u00a7 102(c)(5)(A). The Attorney General may bring an action for injunctive relief \u2013 essentially a further court order \u2013 against third parties for not complying with the first court order. Id<\/span>. at \u00a7 102(c)(4)(A)(i). Injunctive relief may also be sought against any entity that provides a product or service designed (or marketed) to circumvent the procedures proposed under SOPA. Relief is to be limited to injunctive mechanisms, and SOPA by itself does not appear to impute infringement on a non-complying service provider, search engine, or payment network. Still, when faced with immunity for action or litigation against the Justice Department for inaction, it is plausible \u00a0that technology companies would be highly motivated to overcensor. Worse, the kinds of circumvention tools supported within human rights communities and by the U.S. government as part of its Internet freedom initiatives against authoritarian censorship are precisely the tools targeted for elimination under SOPA.<\/p>\n The overwhelming controversy regarding SOPA\u2019s public<\/em> remedies (that is, those initiated by the Attorney General rather than a private party) regards the provision allowing a court to order a service provider\u2013essentially an unwitting middleman\u2013to take all \u201ctechnically feasible and reasonable measures\u201d to block an infringing site. Id. at \u00a7 103. The Act\u2019s most fervent critics<\/a> often point to this element when stating that SOPA has the potential to kill the Internet as we know it, placing the fate of interoperability in the hands of technically unsophisticated judges. Only slightly less fervent critics<\/a> note that this provision would align federal Internet policy with China and like-minded regimes. While the current statute is limited to copyright infringement, the concern is that it establishes an architecture for widespread \u2013 indeed, nationwide \u2013 technical implementations of censorship.[2]<\/sup><\/a><\/p>\n Private Remedies <\/em><\/strong>(H.R. 3261, 112th Cong. \u00a7 103 (2011))<\/strong><\/p>\n SOPA further provides what it calls a \u201cMarket-Based System to\u2026Protect U.S. Property.\u201d \u00a0H.R. 3261 at \u00a7 103. \u00a0This \u201cmarket-based system\u201d is a private mechanism by which an IP holder can pressure payment network providers and Internet advertising services to cease all transactions with \u201csites dedicated to theft of U.S. property.\u201d See<\/span> id<\/span>.<\/p>\n This private remedy does not use the \u201cforeign infringing sites\u201d terminology from the public mechanism. Id<\/span>. at \u00a7 102(a). Here the ultimate infringers are described as sites \u201cdedicated to theft of U.S. property.\u201d Id<\/span>. at \u00a7 103. \u00a0The statutory definition goes beyond what the label colloquially suggests. For example, a site may be branded as \u201cdedicated to theft of U.S. property\u201d if it simply \u201cis taking, or has taken, deliberate actions to avoid confirming a high probability\u201d of the use of the site for copyright infringement. Id<\/span>. at \u00a7 103(a)(ii). The threshold for a private corporation giving such a notice is presumably lower than the court order standard in the public remedy. \u00a0As such, this is arguably SOPA\u2019s most powerful element and one positioned to be applied in a particularly overbroad way. \u00a0Under the Digital Millennium Copyright Act of 1998, which has an analogous private system of notice-and-takedown, there are countless well-intentioned actors, yet some rightsholders have nonetheless\u00a0overreached<\/a> (both intentionally and unintentionally). Under SOPA, payment and advertising companies will have a tremendous incentive to cooperate with a stream of private requests for reasons such as the inconvenience of or inability to evaluate the rightsholder\u2019s claims. \u00a0Unlike the public remedy, the private remedy allows the alleged infringer to provide counter notification to the third party,3<\/sup><\/a> after which the third party can presumably decide whether or not to comply. \u00a0H.R. 3261 at \u00a7 103(b)(5).<\/p>\n It is important to note that SOPA provides a cause of action, including attorney\u2019s fees, for parties damaged by a knowing, material misrepresentation made in conjunction with the private enforcement mechanisms\u2019 notice and counter-notice provision. \u00a0Still, the third party must comply within five calendar days from the initial notice. \u00a0Id<\/span>. at \u00a7 103(b). \u00a0The turnaround time, taking into account legal advice and the alleged infringer\u2019s counter-notice, is extremely tight. Any intellectual property counsel can attest that those limits will be difficult to navigate, especially without exempting holidays and weekends, which turn out to be when such notices are often sent.<\/p>\n As with the public remedy, the payment and advertising companies are immune from liability if they cut off funding to a site or entity in accordance with SOPA. \u00a0Should a payment or advertising company not comply, the rightsholder may then seek injunctive relief against the non-complying third party. \u00a0H.R. 3261, 112th Cong. \u00a7 103(c) (2011).<\/p>\n Issues Common to Both Public and Private Remedies<\/em><\/strong><\/p>\n Industry lobbyists and other supporters argue that SOPA is designed specifically to combat \u201cforeign rogue sites.\u201d \u00a0The image they draw is of brazenly obviously illegal sharing and downloading, such as the Pirate Bay and its brethren. \u00a0Yet \u201cforeign infringing sites\u201d and sites \u201cdedicated to the theft of U.S. property\u201d could include almost any website registered outside of the United States that allows user-generated content. \u00a0Requiring American third parties to take all \u201ctechnically feasible and reasonable\u201d efforts to block such sites, prospectively in some cases, is equally vague. \u00a0If this legislation were only aimed at the Pirate Bays of the world, the language could and would be much tighter. In many instances, statutory language is vague for a reason: to afford maximum leverage by one party intent on invoking a law over whoever is subject to the law.<\/p>\n Immunity for Voluntary Action<\/em><\/strong><\/p>\n Even without instigation by the Attorney General or rightsholders, alleged infringers may find their sites blocked and their funding cut off without any sort of due process. \u00a0SOPA grants payment providers, Internet search engines, advertising services, service providers, and domain name registries immunity from suit for voluntarily acting in a manner consistent with the public and private mechanisms against a site that they \u201creasonably believe\u201d is a foreign infringing site or dedicated to the theft of US property. \u00a0H.R. 3261 at \u00a7 104. \u00a0Even with no copyright holder notifying them that their rights are being violated, all of these actors can take down or stop serving revenue to sites, as long as they are consistent with terms of use. \u00a0Id<\/span>.<\/p>\n Likewise, payment providers, Internet search engines, advertising services, service providers, and domain name registries are also not liable for taking action against sites they believe are \u201cendangering public health.\u201d \u00a0Id<\/span>. at \u00a7 105.<\/p>\n 2. \u201cNotorious foreign infringers\u201d and U.S. investors ((H.R. 3261, 112th Cong. \u00a7 107 (2011).)<\/strong><\/p>\n The U.S. IP Enforcement Coordinator, along with various agency heads, will identify \u201cnotorious foreign infringers\u201d who are causing \u201csignificant harm to holders of IP rights in the US\u201d, soliciting suggestions from the public and rights holders. \u00a0Id<\/span>. at \u00a7 107(a)(1). \u00a0This information will be made into a report to Congress, which will examine and analyze various methods of combating IP rights violations, including and up to prohibiting such sites from raising capital in the United States. \u00a0Id<\/span>. at \u00a7 107(b)(5). \u00a0While SOPA does not directly prohibit such investment, the spectre of such a ban may lead to a chill in investor confidence in countless internet startups, even those that may only distantly be thought of as enabling copyright infringement, such as social networks or content creation platforms.<\/p>\n 3. Amendments to existing criminal copyright laws<\/strong><\/p>\n Criminal penalties for streaming<\/em><\/strong>. (H.R. 3261, 112th Cong. \u00a7 201 (2011).).<\/strong><\/p>\n While most of SOPA\u2019s IP treatment revolves around the third-party-based enforcement mechanisms outlined above, the Act also does refine a number of existing IP laws. \u00a0Most notable among the many changes, SOPA calls for the criminalization of public performance copyright infringement. \u00a0H.R. 3261 at \u00a7 201. \u00a0This provision is specifically targeted at digital streaming and provides criminal penalties for streaming copyrighted material with ten or more views and a retail value of $2,500. \u00a0Id<\/span>. at \u00a7 201(b). \u00a0This sweeping and vague change could categorize millions of Americans as criminals. \u00a0Prosecutorial discretion thus determines whether these long prison terms are applied fairly.\u00a0 The colorful advocacy at http:\/\/freebieber.org\/<\/a> is, at its core, pointing out the implications of this inexplicably broad provision: the videos that teenage Justin Bieber posted of himself singing songs by his favorite artists do indeed appear to qualify as felonies under the Act.\u00a0 This is a particular irony, since those videos launched Bieber\u2019s career as a musician \u2013 exactly the people the Act is intended to protect.<\/p>\n Additional criminal penalties <\/em><\/strong>(H.R. 3261, 112th Cong. \u00a7 202-203 (2011).).<\/strong><\/p>\n SOPA amends 18 U.S.C. \u00a7 \u00a02320 to add the importation, export, or participation in the manufacture of counterfeit drugs to the list of criminal activities. \u00a0Id<\/span>. at \u00a7 202(1)(a)(iii). \u00a0It also increases the penalties for the production or distribution of counterfeit products that result in serious bodily harms from twenty years to life in prison. \u00a0Id<\/span>. at \u00a7 202(2)(a). \u00a0SOPA further increases the penalties for manufacturing or distributing counterfeit goods to the military (or in a way that may harm national security). \u00a0Id<\/span>. at \u00a7 202(3).<\/p>\n SOPA also amends 18 U.S.C. \u00a7 1831(a) to increase penalties for individuals or organizations committing economic espionage. \u00a0Id<\/span>. at \u00a7 203.<\/p>\n 4. Protecting IP rights abroad<\/strong><\/p>\n In what would potentially be a significant increase in the United States diplomatic corps and its activities, SOPA requires the Secretary of State and of Commerce to ensure diplomatic missions or embassies have \u201cadequate resources\u201d to pursue \u201caggressive support of enforcement action against violations of intellectual property.\u201d \u00a0H.R. 3261 at \u00a7 205. \u00a0It would further require the diplomatic corps to make best efforts to see that foreign countries honor existing intellectual property treaties. \u00a0Id<\/span>. at \u00a7 205(a)(2). Conclusion<\/strong><\/p>\n Others have weighed in on why SOPA makes for poor public policy and is an ill-considered technical intervention.\u00a0 In this paper we\u2019ve hewed closely to simply reviewing it as legal doctrine.\u00a0 On those terms, its vague language and undue granting of law-like powers to private parties without sufficient public protections make it worthy of a firm \u201cno\u201d vote.\u00a0SOPA is both overly strong and overly broad; overly strong in the collection of remedies provided, and overly broad for the problems it is attempting to take on.<\/p>\n Notes:<\/strong><\/p>\n 1<\/a> \u201cAs used in subsection (a), the term \u201cservice provider\u201d means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user\u2019s choosing, without modification to the content of the material as sent or received.\u201d 17 U.S.C. \u00a7 512(k).<\/p>\n 2<\/a> The United States may have already crossed that threshold with our government\u2019s actions regarding Wikileaks.<\/p>\n 3<\/a> As with the DMCA, counter-notice requires the alleged infringer to consent to U.S. jurisdiction in the matter.<\/p>\n ___________________<\/p>\n Jonathan Zittrain is a member of the boards of the Electronic Frontier Foundation and the Internet Society.<\/em>\u00a0Both organisations have weighed in on this bill. However, the opinions expressed above are his own. <\/em>He is a renowned legal scholar and Professor of law at Harvard Law School and Harvard’s Kennedy School of Government. He is also Professor of Computer Science at the Harvard School of Engineering and Applied Sciences. Professor Zittrain was\u00a0also a co-founder of the\u00a0Berkman Center for Internet & Society at Harvard University<\/a>.\u00a0<\/em><\/p>\n
\nAn American copyright holder can therefore approach a payment processor or advertising network and demand that it do whatever is technically feasible and reasonable to prevent sites it deems \u201cdedicated to theft of U.S. property.\u201d \u00a0Id<\/span>. at \u00a7 103. \u00a0Unlike in the public remedy, the copyright holder can only seek to cut off payments from payment providers and advertisers. Id<\/span>.<\/p>\n
\nUnder SOPA, special intellectual property attach\u00e9s hired by the Director of the Patent and Trademark Office will work from within embassies or diplomatic missions to advance United States intellectual property policy goals in general and specifically to reduce intellectual property infringement. \u00a0Id<\/span>. at \u00a7 205(b).<\/p>\n