There has been a lot of writing, and action, by people for and
against the two bills being considered by Congress for protecting
intellectual property owners from having their rights infringed
online. The PROTECT-IP Act (PIPA) is the version of the bill being
considered by the Senate. The Stop Online Piracy ACT (SOPA) is its
counterpart being considered by the House of Representatives. The
law firm of LaRiviere, Grubman & Payne, LLP does a good job
of summarizing the two laws here.
The two bills are different and, if passed, will have to be rolled
into a single bill, but their essence is to enable U.S. law enforcement
or a private party to shut down websites that are "dedicated
to infringing activities." Such a website is defined in the
bills one whose primary purpose is infringement. The accuser must
show that the website has "no significant use" other than
engaging in, facilitating, or enabling any of the following:
- Copyright infringement; or
- Infringement or violation of any of the protections contained
in the DMCA (Digital Millennium Copyright Act) including its anti-circumvention
- The sale or promotion of counterfeit goods.
The shutdown of the website is effected by disabling DNS translation.
When a user types in a URL such as www.ZeidmanConsulting.com, the
network devices that implement the Domain Name System (DNS) throughout
the Internet, called "DNS servers," translate the characters
into an Internet Protocol (IP) address consisting of numbers such
Recently the web domain registrar GoDaddy announced that it supported
the bills. Shortly thereafter, angry Internet users at blog site
reddit called for a boycott of GoDaddy and, not surprisingly, GoDaddy
competitors immediately jumped in by offering users discounts to
jump ship. To date, over 40 Internet companies have come out against
the bills (see here)*.
The House issued a paper listing over 140 companies that have come
out in favor of the bills (see here).
GoDaddy gave in to the pressure and reversed its position on the
Renowned attorney Mark Lemley and colleagues David S. Levine and
David G. Post wrote a recent article for the Stanford Law Review
Break the Internet. You can tell from the title where they
stand, but I'd like to address each of their main points.
The Bills Will Not Harm Internet Infrastructure
These authors claim that "the bills represent an unprecedented,
legally sanctioned assault on the Internets critical technical
infrastructure." The authors go on to say that implementing
such filtering "threatens the fundamental principle of interconnectivity"
and "will also have potentially catastrophic consequences."
I'll give them the benefit of the doubt that they're not trying
to simply use exaggerated scare tactics, but rather they just don't
understand the technical issues.
Every time you register a new domain, the DNS servers throughout
the Internet are updated with the translation. This is part of the
normal course of events. Every time a domain name expires, the DNS
servers are again updated to remove the translation. According to
by VeriSign, there were 4.9 million new domain name registrations
in the third quarter of 2011. That's about 37 DNS changes per minute
on average, not counting changes due to expired domains. From a
technical point of view, the bills do nothing different than what
happens many times each day on the Internet and has no technical
challenges or risks whatsoever.
The Bills Do Not Violate Basic Principles of Due Process
These authors go on to state that these acts "violate basic
principles of due process... by depriving persons of property without
a fair hearing and a reasonable opportunity to be heard." I'll
assume that these attorneys have never watched the TV show Law
and Order, or any other cop show, or taken part in a criminal
investigation where a court orders a warrant, based on evidence,
that otherwise violates a person's constitutional rights because
there is evidence of illegal activity. These bills, as with all
similar bills, require a court to make a decision to take action
or not. I'll assume that the authors of the paper have also not
spent much time in a courtroom, because as an expert witness I can
tell you that no judge takes such a decision lightly and that there
are high thresholds of proof. Without this kind of ability to shut
down illegal activity, accused criminals would simply avoid showing
up for court in order to evade punishment.
The Bills Do Not Violate Free Speech Rights
These authors claims that each bill is an "unconstitutional
abridgement of the freedom of speech protected by the First Amendment."
I'll assume that the law professors are a little rusty on constitutional
law particularly with respect to the First Amendment. Many types
of speech are not protected such as hate speech, child pornography,
and speech that infringes on copyrights.
The authors go on to claim that "[t]he Constitution requires
a court 'to make a final determination' that the material in question
is unlawful 'after an adversary hearing before the material is completely
removed from circulation.'" In other words, you cannot take
down a website until you allow the accused to appear in court to
defend himself. This quote is taken from the decision in the case
for Democracy & Technology v. Pappert. Again I'll give
the authors the benefit of the doubt that they were just too busy
to actually read the court's decision, but you can do so by clicking
on the link. The full decision reads a "publication may not
be taken out of circulation completely until there has been a determination
of obscenity after an adversary hearing" (emphasis
added).This case is about the conflict between free speech rights
and an accusation of child pornography, not about free speech rights
and copyrights. But a case about free speech and copyrights on the
web already has a precedent. Years ago the Digital Millennium Copyright
Act (DMCA) was similarly challenged in federal court and survived.
The decision in U.S.
v. Elcomsoft confirmed that restrictions in the DMCA were
not a violation of due process and did not conflict with the First
In fact, copyrights have been enforced in this country as long
as the constitution has been around, and longer than the Bill of
Rights because their protection is given in Article I, section 8:
Congress shall have power
To promote the progress of science
and useful arts, by securing for limited times to authors and
inventors the exclusive right to their respective writings and
The formal codification of copyright law took the form of the Copyright
Act of 1790, before the adoption of the Bill of Rights in 1791.
So the First Amendment's protection of speech and the Copyright
Act's provisions for injunctive relief, seizure, and forfeiture
coexisted easily for over 200 years without conflict. Terry Hart
explains the history of the relationship between copyright and free
speech in his extensive article here
and in several other well-researched articles on his Copyhype blog.
The Bills Would Not Turn the U.S. Into a Repressive Regime
The authors' final point is made with this statement:
It would be not just ironic, but tragic, were the United States
to join the ranks of... repressive and restrictive regimes, erecting
our own virtual walls to prevent people from accessing
portions of the worlds networks.
Repressive regimes are actually those that do not protect individual
property rights, but rather allow the government to determine who
owns what, or conversely allows property theft to go unpunished.
Repressive regimes do not allow individuals to protect their own
property but require the government to do so on their behalf. Repressive
regimes do not have the court system and the legal system of the
United States that strict procedures and requirements to be met.
Repressive regimes do not have the checks and balances in their
government systems to allow one organization, corporation, government
branch, or individual to challenge any law and any action taken
by any other organization, corporation, government branch, or individual.
Repressive regimes concentrate power in a few elite, not in individuals.
There is no realistic concern that this law will turn the U.S. into
a repressive regime.
Copyright and Trademark Infringement on the Internet is a Very
In their conclusion I find surprising agreement with the authors.
Copyright and trademark infringement on the Internet is a very
real problem, and reasonable proposals to augment the ample array
of enforcement powers already at the disposal of IP rights holders
and law enforcement officials may serve the public interest. But
the power to break the Internet shouldn't be among them.
They are absolutely correct. We must find reasonable ways to stop
infringement of intellectual property on the Internet. Such a solution
must be fair to the victim of the infringement. It must uphold the
principles of the Constitution of the United States. And it must
not break the Internet. SOPA and PIPA may not be perfect implementations
of such protection, but they meet all of these requirements. There
may be better strategies that can be reached through measured and
thoughtful debate, but not through excessive hyperbole and fear.
*It doesn't surprise my to see Scribd on
this list. I play a regular game of whack-a-mole trying to remove
illegal, free copies of my articles and books on this site that
just pop up again within a few weeks after I send them a DMCA takedown