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SOPA Goes Through Staged Compromise, Still Censorship

December 14, 2011 - by Donny Shaw

The notorious internet censorship bill known as SOPA is going to mark-up in the House Judiciary Committee on Thursday, and ahead of the meeting the committee chairman, Rep. Lamar Smith [R, TX], has pulled a neat little trick. Smith has come out with a manager’s amendment that eliminates the most insanely unconstitutional elements of the bill, leaving behind an expansive censorship system for the government and the entertainment industry that is meant to seem reasonable by contrast.

It’s a common trick among experienced legislators. Load your bill up with every crazy provision and hand-out its supporters could possibly dream of, and then take some of the extreme stuff out at some point in the legislative process to make it look like you’re being an honest broker. In this case, Smith is scaling back SOPA so that it looks more like the already-draconian Senate bill it was built off of, the PROTECT-IP Act. It changes a bill with a 1% favorability rating among OpenCongress users into a bill with a 2% favorability rating. Progress!

While the manager’s amendment makes the bill less extreme around the edges, it’s still a censorship bill, and it’s still the worst internet legislation in U.S. history. Here’s a look at some of the worst elements of it:

Allows the government and corporations to block access to full websites — The Attorney General or any U.S. copyright holder would be able to commence a takedown action against any website that they determine “has only limited purpose other than” facilitating copyright infringement. Under current law, copyright holders are only allowed to go after infringing content; SOPA would allow them to target entire sites. Given that the democratizing, peer-to-peer nature of Web 2.0 basically comes along with the ability for people to post infringing content, the government’s takedown power could have serious free speech implications. Judicial oversight of takedowns would be minimal, with the government and copyright holders being able to deny website owners from defending themselves if they state that they could not locate them through due diligence.

Creates legal uncertainties and liabilities that will stifle start-ups — The power for large corporations to shut down websites over a single link posted by a user would pose a serious threat to U.S. internet innovation. If SOPA’s powers existed in 2005, it’s hard to imagine that Big Content companies would have had trouble finding a judge willing to order the site to be taken offline. Current law requires website owners to simply comply with takedown requests for specific infringing content. SOPA would require them to police their entire sites for infringement or risk legal attacks and take-down actions by competing interests. The threat of litigation makes it almost not worth trying new stuff on the open web.

Criminalizes ordinary web behavior — Any person who posts a video online that contains copyrighted content and is determined to have willfully infringed the copyright in doing so would face felony charges, including up to 5 years in jail. All you need is at least 10 views and a court to determine the economic value of the streaming to be at least $1,000, and you may be headed to jail for dancing along to your favorite soon on YouTube.

Breaks the internet at the ISP level — The manager’s amendment no longer calls for Domain Name System blocking (the same system that is used to censor the web in China) by name, but it still encourages it. The language in the manager’s amendment would call on internet service providers to use “the least burdensome, technically feasible, and reasonable means designed to prevent access” to whatever websites the government tells them to. So, the ISPs get to pick their poison, but they are still required to block sites. In the words of Google CEO Eric Schmidt, the bill would “criminalize linking and the fundamental structure of the Internet itself.”

Won’t stop piracy — Perhaps the most ridiculous thing about the bill is that none of this would actually stop piracy. People who are dedicated to accessing download sites can easily bypass the bill’s firewall by entering the IP address for the site into their browser.

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