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How SOPA Threatens Net Neutrality

November 15, 2011 - by Donny Shaw

In just a few days, the FCC’s net neutrality rules are scheduled to go into effect, banning internet service providers from discriminating against web services base on content. If, as expected, Congress passes the Stop Online Piracy Act (a.k.a. #SOPA), the rules will soon have a giant loophole drilled into them.

Sherwin Sly at Public Knowledge explains how Section 104 of Title I of the bill (" IMMUNITY FOR TAKING VOLUNTARY ACTION AGAINST SITES DEDICATED TO THEFT OF U.S. PROPERTY") undermines any FCC restrictions on ISPs selectively blocking access to sites.

Basically, all this means is that any of the listed people—registries, registrars, ISPs, or any advertiser—can cut off any website and get off scot free, so long as they can claim a “reasonable belief” that the site was infringing, or even just not doing enough to stop infringement. All they need is that reasonable belief and some boilerplate in their terms of service, and no one can sue them for that cutoff, for any reason whatsoever.

This is a situation tailor-made for an ISP to violate net neutrality and escape any consequences for it. Remember Comcast’s Bittorrent-blocking scandal? Comcast was keeping its users from accessing media via Bittorrent, claiming that Bittorrent users were using too much bandwidth. Of course, that didn’t mean that Comcast was only going to block the protocol during times of congestion—they threw down a much more blanket ban. It’s no coincidence that this blanket ban would drive consumers away from Internet-based video delivery and back to Comcast’s cable channels—and it’s exactly this sort of anticompetitive, discriminatory behavior that net neutrality rules are designed to prevent.

Consider what would happen, though, it Comcast were to claim a similar blocking on the grounds of copyright infringement. Let’s say Comcast gets tired of having too many customers who subscribe to broadband Internet access, but won’t pony up the additional $60 or so a month for cable TV. Maybe those users are getting their video fix on YouTube, watching licensed TV shows or web-native shows and channels like Funny or Die, The Guild, or Auto-Tune The News. But clearly, one can find infringing material on YouTube—it’s clear, not just probable, that some people do in fact use it for infringement. So Comcast now can decide that its customers don’t get to go to YouTube when they type it in to their browsers. Comcast could even decide to block YouTube altogether based on a reasonable belief that it has infringing material on it—and no net neutrality rules would be able to prevent this. YouTube wouldn’t be able to ask for an adjudication before the FCC, or to sue in any state or federal court.

This bill is getting a committee hearing tomorrow where supporters of the bill (and only supporters) will have a chance to make their case for the bill publicly. If you’re looking for a way to fight back, check this out and get involved: AmericanCensorshipDay.org.

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