The US House’s Stop Online Piracy Act (SOPA), and its Senate counterpart, the PROTECT IP Act (PIPA), began as fairly obscure pieces of legislation. Introduced in October and May of last year respectively, both acts floated under the radar of the news media (and it seems, many congressmen) until last week, when a crescendo of internet-organized opposition led to Wikipedia, reddit, and many other online sites mounting blackouts in protest of the bill. The problems with the twin pieces of legislation have been well documented, from the ability for sites to be essentially wiped off the face of the Internet on the whim of an aggrieved copyright holder, to many others. The two acts, while new as individual pieces of legislation, contain a series of bad ideas that, through industry lobbying, have continually resurfaced. 

 An case of this is the The PROTECT IP Act, a redraft of the 2010 Combating Online Infringement and Counterfeits Act, a piece of legislation that tried legislating similarly wide powers to block websites but was stillborn on the Senate floor after being passed in committee. 

Similarly, the powers given under SOPA would supersede  the current centerpiece of U.S. intellectual property laws, the Digital Millennium Copyright Act. The 1998 legislation exempted Internet Service Providers (ISP’s) from legal liability for copyright infringement provided they take down or block access to infringing material, if a copyright holder notifies the ISP in a formal document that it is being housed on their network. The person or site accused of infringement can also request to have material placed back up if they argue in a legal notice of their own that the original claim is not legitimate. Creating such a system has led to many cases of copyright owners requesting takedowns of content that isn’t necessarily infringing, but simply not to their liking––creating a chilling effect on what users post on the internet. 

Furthermore, the Act prohibits consumers from attempting to circumvent copy protection measures added to products by their manufacturers, such as Digital Rights Management measures on a piece of software. While exceptions exist for academic uses and the like, these provisions still infringe on the ability of those who have purchased content to fully “own” it in a sense––modifying the copy protection on a DVD, even if only to put the file on your phone or music player, for example, is technically illegal under the DMCA.

With all of its problems, the DMCA at the least gives those accused of infringement sufficient due process to challenge the sanctions on their content. Where SOPA and PIPA are particularly pernicious is in the power it gives the government to regulate online content.  The original version of PIPA would have allowed the government to remove the domain names of sites accused of copyright infringement from the web’s address book, or the Domain Name Service. In addition, any name that this site switched to would be blocked, and search engines, such as Google, would not be allowed to index so-called censored sites. Moreover, credit card companies and services that provide internet advertising would not be allowed to do business with such “blacklisted” sites. These sweeping powers are already quite troubling, but  legal scholars, including the Harvard law professor Laurence H. Tribe, have pointed out the vagueness of the bills’ definition of a “copyright infringing” site, the fact that material on only a small part of a site can form grounds for an infringement claim against the whole domain, and, most dangerously for free speech, the fact that there is little due process; earlier versions of the bill would have allowed these sites to be frozen out of the Internet solely on the basis of the copyright holder’s accusation.  

Whether the supposed “shelving” of SOPA/PIPA will be a victory for the first amendment on the internet is yet to be seen. The provisions of the bill could be written again as another bill, much like what happened with COICA. International treaties such as the Anti Counterfeiting Trade Agreement raise even further concerns. Unfortunately, it seems that there is consensus among America’s political leaders on the need for tougher intellectual property laws, despite the dubious claims that piracy is costing “thousands” of U.S. jobs. Future legislation should deal with this supposed problem with a scalpel, rather than a sledgehammer.