Internet on Trial: A New Stop Online Piracy Act

Posted by · December 13, 2011 12:54 pm

Last month, Senator Ron Wyden launched a national campaign to recruit support for his Internet filibuster of the Protect IP Act (PIPA). Arguing that the bill would “muzzle speech and stifle innovation and economic growth,” Senator Wyden beckoned the assistance of the American public to visit his Stop Censorship website and sign his petition in opposition to the bill.

Meanwhile, the Stop Online Piracy Act—PIPA’s “companion bill” in the House of Representatives—has faced a barrage of opposition as well. This is likely, at least in part, thanks to the opposition generated by Senator Wyden’s campaign.

Another source of opposition to the bill has been, of all places, Google. Yesterday, Google Chairman Eric Schmidt told The Hill in an interview that SOPA (and PIPA) would be the demise of the Internet.

“By criminalizing links,” Schmidt began, “what these bills do is they force you to take content off the Internet.”

But Schmidt didn’t stop there. Going on to equate these bills to the censorship initiatives taken by repressive governments, Schmidt added: “If Congress writes a bad law, we all suffer.”

Responding Tuesday to the onslaught of criticism, Rep. Lamar Smith, SOPA’s author, introduced a manager’s amendment that would dramatically change the structure of the proposed measure.

According to an Ars Technica report, Smith’s modifications would specifically address what many believe to be the overly broad powers the bill would have given to private companies. As originally written, SOPA would have given companies the freedom to cut funding for websites that were merely alleged to be illegally trafficking copyrighted content or trademarked products—no judicial oversight necessary.

The Congressman’s changes to SOPA are said to specifically address this issue. Instead of granting private companies near-absolute power over the enforcement process, the amended bill would insert a judge into the process, who would actually respond to the copyright and trademark complaints. In cases where the accused site is “dedicated to theft of U.S. property,” the judge will be able to order ad networks to cease doing business with the site.

Nevertheless, the new SOPA is still far from perfect. Despite the sigh of relief that digital rights groups are breathing in response to Smith’s amendment, the proposed measure still has a few key hang-ups worthy of our attention.

If a financial institution or ad network chooses to simply boycott a site that it merely believes to be violating copyright or trademark protections, the Act provides these entities with legal immunity, regardless of such an allegation’s validity. Furthermore, ISPs are still subject to demands from the Justice Department that certain sites be blocked—a thinly veiled form of censorship if you ask me.

It is worth noting that the bill does not cover .com, .org or .net sites, but instead specifically targets foreign sites—a cause for concern in and of itself.

Lastly, something that the bill does not address is quite arguably the greatest reason for opponents of the original SOPA to continuing opposing the newly refurbished one. Although the insertion of a judicial check on the process is helpful, the absence of a concrete definition for the term “rogue” means that enforcement of the bill’s provisions will still be highly subjective.

Meanwhile, Senator Wyden has been hard at work alongside Rep. Darrell Issa composing an alternative piece of legislation to get both bills out of the picture. Coining it the Online Protection and Enforcement of Digital Trade (or OPEN) Act, the duo’s goal is to simply broaden the International Trade Commission’s authority, which already covers physical goods, to include digital goods as well.

“Building on the International Trade Commission’s existing IP expertise and authority makes it possible to go after legitimate cases of IP abuse without doing irreparable harm to the Internet,” Senator Wyden argues on his Senate webpage.

Posting the details of the bill on the new OPEN Act website, KeepTheWebOpen.com, Wyden and Issa are targeting those who support the alleged goals of SOPA and PIPA but are skeptical of each bill’s overly broad provisions that could be susceptible to serious abuse. They have composed a forum where people can read, respond to, and even suggest modifications in order to “build a better bill.”

At the risk of sounding cliche, it would seem that a truly democratic process may end up being the savior of Internet freedom.

See Rep. Darrel Issa promote the OPEN Act in the video below: