Companion bills in the House and Senate are taking aim at the wide-scale, online piracy of intellectual property. No debating the worthiness of that goal. But stopping the theft of movies, games, software, etc., is a moving target and requires a careful, thoughtful approach.
The legislation now moving in Congress has all the nuance of taking target practice with a shotgun; sure, you may hit the target, but everything in the general vicinity is left in shreds too. If these bills pass, there will be major collateral damage to Internet innovation, online free expression, the inner workings of Internet security, and user privacy.
The bills in question are the Protect IP Act (PIPA) in the Senate and the Stop Online Piracy Act (SOPA) in the House. They are backed by extensive lobbying muscle and have bipartisan support. In short, this is legislation that could actually pass.
Still, the early bets on a fast ride to the President's desk for signing may not pay off as easily as first thought. In November, an explosion of online grassroots opposition against SOPA reverberated throughout cyberspace and manifested itself in the form of an online protest called "American Censorship Day." The campaign jolted Congress and got its attention.
At a subsequent news conference, the Motion Picture Association of America -- among those lobbying hardest for the legislation -- indicated there would be changes.
"We will come forward with language that will address some of the legitimate concerns" raised by opponents of the bills, said Michael O'Leary, MPAA senior executive vice president for global policy and external affairs, as quoted by the New York Times. O'Leary, however, gave no specifics.
Changing a few details would not be sufficient; this will require major surgery. As drafted, both bills would create a private right of action that would expose social media websites to new lawsuit risks.
And their call on Internet service providers (ISPs) to re-route domain name requests for targeted sites is a farce. The facade of "blocking" access to a site by not responding when a user types in a site's name is easily thwarted by plugging in the site's numeric I.P. address. If that sounds too complicated, there are browser plug-ins that will do it for you. Meanwhile, messing with the Internet's addressing system turns out to create significant cybersecurity problems for reasons that are too technical to detail here. Of course, such technical consequences may be too technical for Congress as well -- but when Sandia National Labs says it's a problem, Congress should listen.
Breaks the Bargain
SOPA goes even further in breaking the careful bargain reflected in current digital copyright law. Today, websites that host user-generated content (which includes just about everyone these days, since allowing user comments has become ubiquitous) agree to take prompt corrective action when notified of infringing material. No lengthy process or court involvement is required. In return, as long as a website or service takes swift action to remove infringing content when notified, it is provided a "safe harbor" from any liability stemming from infringing activities by its users.