Law in the Internet Society

A Marketplace of Ideologies

Under the guise of promoting “prosperity, creativity, entrepreneurship, and innovation”, Congress advocates the Stop Online Piracy Act (SOPA or “the Act”), which contemplates a free speech suppressive IP protection regime even more draconic than the congenial French Hadopi Law. The Act aspires to fight foreign and U.S.-directed websites that allegedly infringe U.S. intellectual property. For this purpose it establishes an elaborate censorship system whose implementation relies on an extended authority of U.S. law enforcement agencies as well as on an overbroad regime of privately administered justice. Advocates of property rights would benefit from the legal uncertainty created by the vaguely framed provisions of an Act that seems to refuse the slightest attempt to balance copyright against free speech interests.

Free Speech Concerns

Even if one argues that the unauthorized use of someone else’s intellectual property does not fall within the realm of free speech protection, the present wording of the bill - if not amended or narrowly interpreted - raises serious free speech concerns due to its overbreadth. The Act’s far-reaching measures do not only target websites or portions thereof (!) that “commit”, but even those that merely “facilitate” copyright or trade secret infringements. They furthermore address Internet sites that do not contain “reasonable measures” to prevent infringing goods or services from being obtained in or delivered to the United States. As a result, SOPA’s provisions would authorize the state to take action against any foreign website of the like as Vimeo, Flickr or YouTube? that hosts user generated content if only a single user posts unlawful content or provides links to potentially IP infringing sites. SOPA’s provision enabling copy-right holders themselves to proceed against websites infringing their rights, raises similar concerns. Although only directed at sites or portions thereof which predominantly seem to engage in, enable or facilitate the violation of copyrights and trademarks, the terms “enable” and "facilitate" can be interpreted in such ways as to target websites that have not the slightest intent to enable or facilitate IP violations. Any VPN, proxy, privacy or anonymization software that serves Internet users’ privacy concerns – which are not only pivotal if one lives in an autocratic state – could fall within the scope of this wording as the anonymity they provide theoretically “enables” or “facilitates” copyright infringements. If SOPA’s sanctions were applied, the operation of the affected websites would be stifled and with it a wide range of legitimate content they host or enable would fall prey to the Act’s sweeping regime if only some insignificant portion thereof facilitates IP violations. This implicates various free speech problems. Lawful content would be suppressed in order to prevent the distribution of unlawful content and websites that offer expression platforms or anonymity tools to users could be forced to close down although they never had any intent to violate IP rights, severely narrowing the web’s free-speech enhancing capacity. This stands in stark contrast to the safe harbor provisions of the DMCA, a framework that takes free speech interests into account. SOPA’s unusually broad standards of liability create detrimental incentives for user-driven websites to implement elaborate systems to monitor their user’s activities and establish a private censorship regime.

International Implications

Another proposition of the Act adds to the free speech concerns in a broader sense. It requires ISPs to refuse to perform Domain Name requests to websites that are targeted by SOPA. If implemented, this provision would - besides serious technical concerns - send out a politically detrimental message: If the U.S. invokes such ostensible ideals as the protection of “creativity” to justify and institutionalize Internet censorship for the enforcement of its IP laws, why would other governments not filter Domain Name requests to protect such pivotal state interests as the integrity of their political system or the preservation of cultural and religious values and subject all websites to a filtering process that display opposed content? Hillary Clinton’s lip service to the openness of the Internet last year was a masterpiece of political ambiguity. Equipped with heavy ammunition of catchy ideology that would allow the U.S. government to justify any future agenda for its Internet governance, her speech blamed other States for failing to appreciate and foster the revolutionary potential of the Internet. The focus of the address was on free speech. How much credibility will be left to her words in the eyes of these “other States”, namely Cuba, China, Iran, Burma or Vietnam, if the U.S. passes a law that officially declares it legitimate for governments to ban access to websites that do not comply with state interests and fragment and localize the Internet? Iran, one of the most beloved thorns in the country’s side, contemplates just that: a national “halal” network to shield its population from intrusions of Western culture and to protect Islamic values. Myanmar, Cuba and North Korea equally support the concept of “dual networks” to foster the ideologies of the governing. The Chinese Communist Party, one of the most sophisticated Internet censors in the world, regulates the Internet so as to “serve socialism” and bans any content it deems in opposition to this political aspiration. Capitalism seems to be one of the predominant ideologies of the Western world, equally essential to its moral and economic survival as other countries perceive their religion or political concepts. If the U.S. is willing to censor the Internet and abandon legitimate free speech interests to reinforce a money-based approach towards content and information, it will be difficult in the future to present the country as an ambassador of Internet freedom on the world stage as Hillary Clinton vigorously did last year. A potential UN project contemplating the inter-governmental regulation of the Internet will give these divergent concepts of content regulation and information monitoring a forum for competition and create a magnificent marketplace of ideologies.


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r6 - 04 Sep 2012 - 22:02:26 - IanSullivan
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