Yesterday the House of Representatives introduced its version of the Protect IP Act, known as the “Stop Online Piracy Act” (“SOPA”). The Senate previously placed a hold on the Protect IP Act over worries that it violated the First Amendment, after commentators from tech industry leaders to law professors decried the proposed law as unconstitutional censorship. The new bill goes even farther, raising new concerns about censorship online.
Title I of SOPA, dubbed the E-PARASITE Act, allows the Attorney General to request an injunction against a “foreign infringing site.” After the injunction is granted and the order is served, ISPs would have to take measures to prevent access to the target site by their subscribers within five days of service. Search engines would have to take measures to prevent the target site from being linked. Payment network providers would have to prevent transactions from going through where one of the parties involved is the target site, and online ad services would have to stop providing ads to the target site. The ISPs, search engines, and others who would be affected by this act may intervene in the initial action, or they can file a motion to modify, suspend, or vacate the order after it has been granted.
SOPA also allows private actors who are authorized to represent IP holders to send a notification to payment network providers and ad services requiring them to stop providing service to any website alleged to be dedicated to the theft of U.S. property under § 104(a)(1) of the act. It requires these companies to designate agents to receive notifications, and to provide the notification to the targeted sites. Only after the payment network provider or ad service has provided notification, if the website owner believes that they do not meet the definition of a website dedicated to the theft of US property they can send a counter-notification to the same agent. This counter-notification allows the company to continue to provide service to the website. If they do that, the original private actor may then file for an injunction against the website.
If enacted, this law would also give immunity to ISPs and payment network providers that take action on their own to prevent access to allegedly infringing website. All of these provisions put in the hands of a few costly measures to take down websites or prevent meaningful access to them, while at most having to meet the requirements of a motion for injunctive relief. The bill would also make it a crime to stream copyrighted content. It would make Internet censorship part of US law and is far too heavy a measure for the problem it aims to combat, namely online piracy. Content owners should be able to protect their property from infringement, but their rights should be weighed against the value of a freer Internet.
This bill is in its early stages yet, having only just been introduced to the House Judiciary Committee. Its sibling bill in the Senate didn’t make it very far yet, but it will be worth watching to see how SOPA fares.
Read the bill in its entirety here.