SOPA and PROTECT IP chill free speech

There’s a lot of outcry over how pending copyright legislation (SOPA (PDF), formerly known as E-PARASITE, in the House, and PROTECT IP (PDF) in the Senate) would “break the Internet”. Hyperbole aside, the bills would enable the Attorney General and rights holders to go after payment processors, domain name registrars, and the like to disable access to “foreign” websites that infringe U.S. intellectual property rights.

My concern is that the bills are overbroad. They take down too much non-infringing speech in order to get at the stuff that does infringe upon copyright. I’m not sure whether the Supreme Court would hold that the bills abridge free speech rights under the First Amendment, but they would have a serious chilling effect upon free speech.

For example, suppose that the Russian equivalent of Google’s Blogger service hosts infringing content — say, at Suppose also that this is the only piece of infringing content and that the vast majority of content on is stuff like critiques of Dostoyevsky and recipes for borscht. Under Sec. 102 of SOPA, the Attorney General can obtain a court order to block off all U.S. access to While the Russian operators of could, in theory, appear in a U.S. court to dispute the Attorney General’s actions, it’s unlikely that the operators of a Russian language website are going to go to that effort for the handful of American users interested in its Borscht recipes. Collectively though, this would block off Americans from a lot of “foreign” Internet account. It would, in effect, create a “Great Firewall of America”.

Or take the anti-circumvention provisions. Sec. 102(e)(4)(A)(ii) of SOPA makes it illegal to distribute “a product or service designed or marketed for the circumvention or bypassing of measures” used to block access to infringing foreign websites. The problem is that there’s no technical difference between a product Americans would use to get around a ban on our hypothetical and one the Chinese would use to get around a ban on The only real difference would be in how the technology was marketed. But that wouldn’t be much consolation to IP holders. It’s like how BitTorrent advertises itself as a way to distribute legal content but “everyone knows” that the main use of BitTorrent is to download copyrighted content for free.

This places the AG in a tough spot. Either he lets people get around these technical measures, or he cuts off access to technology used by human rights dissidents!

Finally, the immunization provisions create some perverse incentives. Sec. 103 of SOPA creates a notice-take-down scheme for payment processors and the like. In a nutshell, it works like this. Suppose some jerk decides to (falsely) notify PayPal that Tort Bunnies infringes upon his copyright. Under SOPA, PayPal must freeze my account and hold my money in limbo. I can file a counter-notice with PayPal saying that there’s no copyright issue since I own the copyright on Tort Bunnies, not this random bozo. But nothing in SOPA obligates PayPal to actually acknowledge my counter-notice and unfreeze my account. And Sec. 104 of SOPA immunizes PayPal from any lawsuit so long as it “reasonably” believes that Tort Bunnies is infringing.

In practice, this creates an incentive for PayPal to over-regulate free speech and block transactions for sites that are perfectly legal. Nor is there any liability for the jerk who falsely told PayPal to freeze my account so long as he didn’t “knowingly” make any misrepresentations. This creates an incentive for rights holders to abuse the takedown process, since there’s no penalty for negligence or recklessness, only knowing misrepresentations.

In theory, maybe these abuses and restrictions of free speech would be worth it if copyright infringement was a serious enough problem right now. And Hollywood would argue it is. But somehow the movie industry is still seeing record profits despite piracy. Even the music industry seems to be recovering. Sure, maybe profits could have been even higher with stronger enforcement of IP rights. But chilling perfectly legal free speech isn’t worth the price.

If you’re interested in why these bills are a bad idea from a technical perspective,  here’s why (PDF). I don’t think it necessarily “breaks” the Internet, but it would make things less secure.

UPDATE (11/16/2011): Actually, the more I think about it, the more I believe PROTECT IP would “break” the Internet. Read Michael Geist’s article about how the bills would assert American control over Canadian websites. Much of the Internet’s infrastructure is U.S.-centric. Every dot-com, for instance, is registered in the U.S. Other countries have tolerated this because we’re generally pretty even-handed about things. But unilaterally subjecting the basic building blocks of the Internet to U.S. law (and the quirks of U.S. politics and the U.S. legal system) would undermine that trust. As more and more try to assert their online independence from America, collateral damage is very likely.

Also, check out Techdirt’s concerns about SOPA’s language penalizing “deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute” infringement.

There’s a White House petition against SOPA/E-PARASITE here. You should sign it.