Information Freedom: the Ethical Implications of Sopa

James Eckert Professor Reed PHIL 2306 2 December 2011 Information Freedom: The Ethical Implications of SOPA The Stop Online Piracy Act (SOPA) is a U. S. House of Representatives bill with the stated purpose, “To promote prosperity, creativity, entrepreneurship, and innovation by combating the theft of U. S. property, and for other purposes. ” (1) SOPA proposes to accomplish those goals by allowing the U. S. Department of Justice and copyright owners to take action against websites thought to be facilitating copyright infringement.

What brought SOPA into the limelight is the criteria it uses to determine what a copyright-infringing site is, and the methods it allows to punish those websites. It was drafted with the intention of combating websites that host U. S. copyrighted content, many of which are hosted offshore and outside of U. S. legal jurisdiction; and subsequently focuses on attacking U. S. based internet services that could benefit such ‘rogue sites. ’ The sites it targets are defined as being “dedicated to the theft of U. S. property. ” The qualifications for such a site? It must be directed toward the U. S. , and either * “engage in, enable, or facilitate” infringement; or * take or have taken steps to “avoid confirming a high probability” of infringement These defining attributes are for any portion of a site, even a single page containing infringing material can qualify a site as ‘rogue. ’ SOPA then allows a copyright holder who believes their works are being infringed by such a ‘rogue site,’ to send a notice to facilitating services of the site, such as payment processors (e. g. PayPal, Visa), ad networks, and hosting providers. These services must then deliver the notice to the site, and suspend their services; unless the site provides a counter-notice explaining how it is not violating copyright, to be delivered within five days of the original notice. If a counter-notice is supplied by the site, or if the supporting services do not end their service, the rights-holder is able to take them to court. One of the most troubling notions that SOPA introduces is the disconnect between judicial process and a real-world response.

The extraordinarily broad definitions for a ‘rogue site’ would allow copyright holders (or anyone presenting themselves as one) to strangle services that support a site, without ever setting foot in court; or even requiring to verify that they do, in fact, own the copyright to the material they claim as infringing. SOPA also provides the previously mentioned supporting services with immunity from liability, if they comply with copyright violation notices, regardless of the validity of the claim itself.

SOPA does provide one important clause concerning a right-holder’s request for takedown; if a copyright holder knowingly misrepresents a site as being a haven for copyright infringement, they are liable to damages. Unfortunately, this has little effect in practice, because the breadth of definition in what constitutes a ‘rogue site’ would make virtually all of the internet services we are accustomed to into an illegality.

For example, YouTube – a streaming video service that allows its users to upload media content, would no longer be protected from claims on material that is provided by their users; a state of affairs that it has enjoyed due to the ‘safe harbor’ provisions of the Digital Millennium Copyright Act (DMCA), stating that sites are shielded from the liabilities of their users, provided the site follows DMCA’s notice-and-takedown policy for copyrighted content.

If sites that allow user-provided content were required to actively police all user content for potentially copyright-infringing material, even social media services such as Facebook or Twitter would be under attack as facilitating copyright infringement. SOPA’s provisions even ban linking to sites deemed infringing, including results from a search engine, or comments on a blog.

The implications of this lead to a decidedly unjust outcome: service providers would have no reason to defend their customers from invalid claims, supposed copyright holders would have free reign to cripple even a law-abiding site, and even websites that make a good-faith effort to remove copyrighted content would be unable to meet the draconian standards set forth in SOPA. SOPA has still more provisions, of a substantially more troubling nature.

While the process previously described is only related to the abilities granted to copyright holders, SOPA also has far-reaching implications for copyright infringements that do make it into a courtroom. It allows the U. S. Department of Justice to obtain a court order against sites accused of infringing, or facilitating infringement of copyrighted material. Once the U. S. attorney general is furnished with such an order, they have the power to force U. S. ased Internet Service Providers (ISPs) to censor the website through the Domain Name Service (DNS), as well as forcing supporting services such as ad networks and payment processors to suspend their service to the site, and finally to force search engines from linking to an infringing site. This provision of SOPA is by far the most contentious, with dramatic technical ramifications that critics have compared to the internet censorship of countries such as China and Iran. 2) While the technical details are too deep to explore in this work, leaders in the fields of technology, business, and law have denounced it as being infeasible, insecure, unstable, easily defeated, and as setting a poor example for other nations if America were to adopt such a system of censorship. (3) (4) (5) (6) In conclusion, SOPA represents an appalling direction in U. S. copyright law. While it attempts to tackle the very real and present issue of online copyright infringement, the powers it grants are far-reaching and almost completely disconnected from judicial due process.

If it were adopted and implemented, not only would it become an obstacle to the use of the internet for collaborative work, fair use content, and free speech; but it would undermine the very notion of justice in the attempt. It imposes an impossible state of constant vigilance on law-abiding sites, and proposes a dramatically imbalanced system where the burden of proof is on a website to prove that its content is legal, rather than the copyright-holder who believes their work is being infringed. Works Cited 1. U. S. House of Representatives.

Stop Online Piracy Act. 2011. 2. Basulto, Dominic. SOPA’s ugly message to the world about America and internet Innovation. 2011. 3. Lemley, Mark A. , Levine, David S. and Post, David. Open letter to the House of Representatives. November 15, 2011. 4. McCullagh, Declan. OpenDNS: SOPA will be ‘extremely disruptive’ to the Internet. November 17, 2011. 5. Mozilla, Google, Yahoo! , Facebook, Twitter, Zynga, LinkedIn, eBay, AOL. Joint letter to Congressional leaders. November 15, 2011. 6. Downes, Larry. Statement on Stop Online Piracy Act. 2011.