The tech and civil liberties communities have been fighting proposed copyright legislation. Critics have argued that the proposed legislation would break the Internet, create the Great Firewall of America, and lead to censorship while doing little to stop piracy itself. The bills are called the Stop Online Piracy Act (SOPA) in the House and the PROTECT IP Act (PIPA) in the Senate.
The point of this post is more narrow than explaining all that is wrong with the bills. It responds to one particular argument: defenders of SOPA and PIPA keep saying that the legislation would not affect domestic sites. They say that the bills only affect foreign infringing sites like The Pirate Bay and MegaUpload.
Unfortunately, they’re wrong. They’re wrong for at least three reasons.
First: The bills apply to the many American sites that have domestic and foreign domain names. This means Google.ca, Amazon.co.uk, and all the other foreign sites registered to American companies. (See the marked up version of PIPA, page 33, and the Manager’s Amendment to SOPA page 4. To understand the reference to registrar and registry, see definitions here.) The definition of a “website” in the bill includes even a “portion” of the site. So if even a few pages on Amazon.co.uk include copyright-infringing material, such as used bootleg CDs, then Amazon would have to respond to the bill.
Second: The bills’ anti-circumvention provisions don’t even pretend to limit the bills to foreign sites. They clearly apply to American sites. Any tool that helps anyone “circumvent” the bills’ remedies are illegal. Since the bills’ remedies include domain-name breaking and removal from search engines, any American sites that permit you to search for, or find, The Pirate Bay’s new domain name is potentially liable for circumvention. At least some people will tell you where to find The Pirate Bay, and they will use their Facebook status, their Twitter posts, their Tumblr, their blog on WordPress or Blogger, a Youtube video, or a webpage indexed by Google to do it. That means all of those American sites displaying the information might be subject to SOPA and PIPA as anti-circumvention tools. The language is pretty vague, but it appears all these companies must monitor their sites for anti-circumvention so they are not subject to court actions “enjoining” them from continuing to provide “such product or service.” What “product or service” might be shut down? The language is unclear. What could be shut down is the particular tweet or the entire Twitter service; one video or all of YouTube . (If it were just one tweet or video, the existing laws, such as the Digital Millennium Copyright Act would suffice, so the proposed law may be read more expansively.) (For evidence of this point, read the marked up PIPA, page 56, and the Manager’s Amendment to SOPA, pages 20-21.) Apparently, the SOPA/PIPA supporters are saying there’s “immunity”; they mean YouTube and Twitter wouldn’t pay damages-fees for circumvention. But YouTube and Twitter could be shut down. They would be “enjoined” from providing service, whatever that means. That’s an even bigger threat than damages.
Third: Beyond the first two, the enforcement provisions regarding even The Pirate Bay obviously impose a burden almost exclusively on American companies. Search companies have to remove links from their search engine, imposing compliance costs. This applies to Google, Bing, Yahoo, StumbleUpon, and also to smaller search engines like Blekko. The American domain-name providers must break the connection between some domains and IP addresses. This applies to large and small American DNS-providers alike. And the advertising and payment processing provisions apply to American companies. (For evidence, note even the bills’ defenders admit the bills will commandeer American intermediaries to target foreign sites. Indeed it deliberately commandeers American intermediary companies not involved in any infringement.)
So, for these three reasons, the sites burden American sites and American speech.
In fact, I don’t think ThePirateBay.org and MegaUpload.com are even covered by the bills–despite all the invective against them. The bills define foreign sites based on their domain names, and .ORG and .COM are not foreign.
But it would not end the story if the legislation only targeted foreign sites: the First Amendment protects Americans’ ability to access non-infringing foreign speech no less than it protects our ability to access domestic speech. It protects our right to read books by Voltaire, Vaclav Havel, or James Joyce no less than our right to read Milton Friedman, Scott Fitzgerald, and Sabina Murray.
(Note: in addition to loving the Internet and being a long-time free speech lawyer and scholar, I also now represent some tech companies, some of which are on record against these bills. Also, if I misunderstood the import of the bills’ language in some way, I am happy to correct.)