Sunday, October 30, 2011

Stop Online Piracy Act (H.R.3261) Violates Presumption Of Innocence, Poses Serious Threat To Free Speech; Senate Version Is The PROTECT IP Act (S.968)

Congress continues to take advantage of a tax-weary population by proposing more preemptive justice legislation to stop the increase in justice costs. The latest caper by the U.S. House of Representatives is the "Stop Online Piracy Act", designated H.R.3261, authored by Rep. Lamar Smith (R-TX21). The bill was referred to the House Judiciary Committee on October 26th, 2011. Access the portal for H.R.3261 HERE, which not only includes the text of the bill, but also a list of the 12 co-sponsors (Congressman Don Young is not one of the co-sponsors).

The Senate has its own version, called the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP Act)", authored by Sen. Patrick Leahy (D-VT), and designated S.968. The bill was referred to the Senate Judiciary Committee, which filed a written report on July 22nd, 2011, in which they concluded that the bill will provide the Justice Department and rights holders with an important new mechanism for combating online copyright infringement and the sale of counterfeit goods. Access the portal for S.968 HERE, which not only includes the text of the bill, but also a list of the 34 co-sponsors (neither Mark Begich nor Lisa Murkowski are co-sponsors).

Proponents of H.R.3261 say the bill would empower the Justice Department to seek injunctions against foreign websites that traffic in pirated goods or content. But a controversial provision would also allow the government and rights holders to demand that third parties, such as payment processors and online ad networks, cut ties with sites deemed rogue. The bill has already drawn strong support from the entertainment and retail industries ahead of its release; the bill borrows heavily from the Senate's PROTECT IP Act. These groups insist that without greater protections against rampant piracy on the Internet, their industries face certain demise. The U.S. Chamber of Commerce has been particularly active in building support for the bill. In September 2011, a coalition of over 350 firms sent a letter to every member of Congress urging them to pass the legislation.

Opponents of H.R.3261, which include a coalition diverse enough to encompass both the Tea Party Patriots and the liberal group Demand Progress, are concerned about the chilling effect upon free speech and the preemptive nature of the remedies prescribed in the bill, which tend to violate the customary presumption of innocence. According to Righthaven Victims, the bill would allow copyright owners – movie studios and other content providers – simply to accuse a website of infringement, which could lead to that site being shut down by court order and entire links to the site being wiped clean from the Internet. Any website with a hyperlink, such as Twitter, Facebook or a blog, would be subject to liability, disrupting the DMCA's safe harbor provisions. More non-infringing sites could be inadvertently shut down under the proposal. Indeed, the law is so far-reaching that it could force Internet providers like Comcast to block all access to the allegedly illegal site. Forbes informs us that 130 entrepreneurs, founders, CEOs and executives who have been involved in 283 technology start-ups recently sent a letter to Congress warning that these bills threaten their work to continue creating and building the companies of the future.

In addition to chilling free speech and violating the presumption of innocence, both these bills would stack the deck in favor of the old-line media companies anbd erect major hurdles against new players. Creativity and innovation could be strangled.

CNET provides a technical analysis of the potential problems with S.968. According to an analysis (PDF) prepared by five Internet researchers, the bill is incompatible with a set of DNS security improvements called DNSSEC, innocent websites will be swept in as collateral damage, and the blocks can be bypassed by using the numeric Internet address of a Web site. Another concern is that the filters could be circumvented easily by using offshore DNS servers not subject to U.S. law. That will expose users to new potential security threats not present if they continued to use, for example, Comcast's or AT&T's DNS servers. Fake DNS entries can be used by criminals to spoof websites for banks, credit card companies, e-mail providers, social-networking sites, etc.


  1. Did you even read the bill? I did. It will pass but will not matter after the FCC begins regulating the Internet just like they sorta do TV and radio. See my filing at my name-link.

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