Amir Zonozi CCT 709, Fall 2011 Prof.

Schruers Final Paper Analysis of “The Stop Online Piracy” Act (SOPA)

The Stop Online Piracy Act (H.R.3291) or (SOPA) introduced by Rep. Lamar Smith (RTexas) is currently under the consideration of the House’s Committee on the Judiciary. This is important because SOPA proposes controversial legislature critical towards the functioning future of the Internet. This paper does not address the Protect IP Act (PIPA), nor SOPA’s manager’s amendment rework. This paper will explain my analysis of SOPA and why congress should not pass the bill in 4 parts. First, I will provide a brief history and the current standing of intellectual property law applied to the Internet and how SOPA works. Second, I will provide the arguments provided by the sponsors of SOPA and why they believe it should be passed. Third, I will provide arguments on behalf of the opponents of SOPA and describes arguments made exposing the bill as unconstitutional. Fourth, I will conclude by explaining why SOPA should not be passed.

I. History There are several acts passed that currently give copyright holders a method of protecting their intellectual property. The 1998 Digital Millennium Copy Right Act (DMCA) has set the standard around the world in Internet law and has set the foundation of legal framework regarding digital content. Currently DMCA grants Internet companies immunity from third parties and user-posted content, so long as a the Internet company responds to owners of copyright notice of infringement. This system serves as a balance, the DMCA protects the end users, and does not hold Internet

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Amir Zonozi CCT 709, Fall 2011 Prof. Schruers Final Paper Analysis of “The Stop Online Piracy” Act (SOPA) companies liable and force them to monitor their users’ actions as well as provides an efficient way for copyright holders to remove infringing content. The changes proposed by SOPA moves away from the DMCA and creates new line of legal framework in dealing with digital content.

The goal of SOPA is to target the theft and infringement of American intellectual property, copyrights and trademarks from foreign websites that are “dedicated to the theft of U.S. property”. SOPA will allow the U.S. Government to block Americans from visiting domestic and foreign websites accused guilty of any copyright infringement, whether direct, or contributory infringement. This is critical because the U.S. sets the standard for Internet law around the world, if passed, SOPA will influence other countries to make censorship legal.

SOPA aims to combat the theft of United States intellectual property by allowing plaintiffs, owners of intellectual property, the right to notify online advertising and payment processors of alleged websites infringement of copyrighted content. These online advertisers and payment processors have five days to suspend payments to the operator of the website, and allow the website an opportunity to counter-notice, but are not required to reinstate service. These online advertisers and payment processors gain immunity from legal issues if compliant. If service is reinstated, plaintiffs are able to sue the infringing website, if found guilty the website will be forced to pay monetary

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Amir Zonozi CCT 709, Fall 2011 Prof. Schruers Final Paper Analysis of “The Stop Online Piracy” Act (SOPA) sanctions and Domain Name Service (DNS) blocking against alleged infringing website will take place. DNS is a common method of denying access to certain websites and has been used previously before by China, Iran and Syria. How DNS blocking works is that each website is hosted on a web server that has an IP address. IP addresses are not very user-friendly, as a result DNS was created to help make websites easier to remember, every website has one IP address. The DNS translates the string of numbers by searching through DNS servers provided by Internet Service Providers (ISPs). DNS blocking occurs when the ISPs remove the record of the blocked website, therefore the ISP will not be able to connect you by the domain name.

1. II. Arguments Defending SOPA 1. Problem that needs to be solved. 1.1. Urgent need to protect freedom of expression on the Internet throughout the world, the Internet is being used to distribute pirated intellectual property (Abrams). 2. Target: Foreign infringing websites. 2.1. SOPA targets theft and infringement of American intellectual property, copyrights and trademarks. SOPA protects American consumers from the actions of infringers who affect American copyright business and consumers who are located outside of the United States.

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Amir Zonozi CCT 709, Fall 2011 Prof. Schruers Final Paper Analysis of “The Stop Online Piracy” Act (SOPA) 2.1.1. SOPA will target websites that are either; “(1) primarily designed or operated for the the purpose of, or facilitating the violation of, current copyright or trademark law; or 2.1.2. (2) the site operator is taking actions to “avoid confirming a high probability of the use of the site or portion thereof” is in violation of copyright and trademark law, or the individual operates the site or a portion thereof to promote its use to carry out violations of copyright and trademark law;” or 2.1.3. (3) be used by or within the United States. (Abrams, 7).

3. Key Members. 3.1. SOPA incorporates all critical members of the online ecosystem, including ISPs, search engines, payment processors, and online advertising, in defending the interests of intellectual property owners. In order to be efficient online infringement requires all components working towards the same goal (Pallante). 4. Authorized Action. 4.1. SOPA provides stronger measures to the Attorney General than the copyright owners, and therefore SOPA is measured (Palantte). 4.1.1. Only the Attorney General will be given authorization to seek orders to block or terminate the services of ISPs, search engines, payment

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Amir Zonozi CCT 709, Fall 2011 Prof. Schruers Final Paper Analysis of “The Stop Online Piracy” Act (SOPA) processors, and advertising networks to infringing websites, by obtaining court orders that are not readily available under current law. 4.1.2. Attorney General will need authorization for immediate relief for situations such as live sporting events or pre-release of films (Palantte). 5. Notice of infringement is formal. 5.1. The plaintiffs must proceed notification of alleged infringing websites dedicated to the theft of U.S. property by providing “a written, signed communication to the designated agents of the two entities governed under this provision, the financial service providers and the Internet advertising services” (Abrams, 7). 6. Procedural Protections. 6.1. SOPA incorporates Federal Rule of Civil Procedure 65 (Palantte). Rule 65 states that an alleged website is entitled to a notice and an opportunity to counter-notice regarding a temporary restraining order only if: 6.1.1. "(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and 6.1.2. (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." 6.1.3. Therefore SOPA is allowed to block or terminate services of websites due to extraordinary circumstances (Palantte).

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Amir Zonozi CCT 709, Fall 2011 Prof. Schruers Final Paper Analysis of “The Stop Online Piracy” Act (SOPA) 6.2. SOPA does not face the scrutiny of the First Amendment because the bill targets copyright infringement.

III. Argument Opposing SOPA 1. SOPA’s scope is too broad. 1.1. Section 103 of SOPA gives plaintiffs authority against domestic and foreign websites that are “dedicated to theft of U.S. property.” The plaintiff can be anyone with an intellectual property right infringed by the website, the plaintiff does not necessarily have to be the owner of the infringed copyright or trademark (Tribe, 5). 1.1.1. Section 103(a) contains a very broad and unclear definition of a website “dedicated to theft of U.S. property” which is defined as a website that “enables or facilitates” infringement by a third party (Tribe, 11). 1.1.2. The lack of precision in language leaves the provision open to interpretation. By this definition, protected speech on legitimate websites like Facebook, Google, Twitter, Reddit and YouTube would have their services blocked or terminated due to infringing material posted by users (Ammori). 2. SOPA violates the First Amendment.

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Amir Zonozi CCT 709, Fall 2011 Prof. Schruers Final Paper Analysis of “The Stop Online Piracy” Act (SOPA) 2.1. Once the plaintiff notifies the online advertiser or payment processor, they have five days to stop providing services to the alleged infringing website. SOPA requires the online advertiser or payment processor to give notice of infringement to the alleged website and the infringing website is allowed to respond with a counter-notice to the online advertiser or payment processor, however SOPA does not require the the online advertiser or payment processor to restore service (Tribe, 5). 2.2. If service is restored through the counter-notice, the plaintiff sue the operator(s) of the website, if found guilty of theft of U.S. intellectual property, the plaintiff can then serve the the online advertiser or payment processor for failure to comply. This creates a huge incentive for the online advertisers or payment processors to comply in order to avoid lawsuits and gain immunity (Tribe, 6). 2.3. Section 104 of SOPA grants immunity to ISPs, online advertisers, payment processors, search engines, and domain registries through compliance with plaintiffs by voluntarily blocking or terminating services if there is reasonable belief that the alleged website is a website “dedicated to theft of U.S. property” or a “foreign infringing site” as long as the actions taken fall within the terms of service contract (Tribe 6). 2.4. Therefore with the incentive for immunity, SOPA encourages ISPs, online advertisers, payment processors, search engines, and domain registries to

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Amir Zonozi CCT 709, Fall 2011 Prof. Schruers Final Paper Analysis of “The Stop Online Piracy” Act (SOPA) block or terminate services to websites “solely on an interested part’s unilateral allegation that they are illegal, in the absence of a judicial finding of infringement,” (Tribe, 6 ). 2.5. SOPA provides no process of restitution if an alleged website’s property, business or reputation has been wrongfully harmed through Section 104; giving ISPs, online advertisers, payment processors, search engines, and domain registries further incentive to terminate or block services to websites “merely accused of being dedicated to the theft of U.S. property,” (Tribe, 6). 3. SOPA violates prior restraint act. 3.1. SOPA’s notice-and-termination procedure of Section 103(a) allows potential violations of protected speech. Section 103 (a) gives copyright owners the authority to block or terminate online advertisers and payment processors services from websites by “filing a unilateral notice” that the site is “dedicated to the theft of U.S. property” without a judaical hearing (Tribe, 7). 3.1.1. The incentive of immunity gained by voluntarily blocking or terminating services to these websites almost guarantees compliance. 3.1.1.1. “This procedure of authorizing power to suppress speech without prior notice or judicial determination violates the prior restraint doctrine,” (Tribe, 8).

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Amir Zonozi CCT 709, Fall 2011 Prof. Schruers Final Paper Analysis of “The Stop Online Piracy” Act (SOPA) 3.1.1.2. “[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Assn, Stuart, 427 U.S. 539, 559 (1976) (Tribe, 8). 3.1.1.3. Legislative silencing speech before a court has ruled to be legally unprotected is unconstitutional. Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) (Tribe, 8).

4. SOPA will have unintended consequences. 4.1. SOPA will unintentionally create a total monitoring of web services, uploads and downloads which will impact the industry and innovation, as well as undermine the security of the Internet by changing its basic structure. 4.2. According to Google Executive Chairman Eric Schmidt, SOPA would “criminalize linking and the fundamental structure of the Internet itself.” and that these bills “force content off the web” providing a form of censorship. 4.3. SOPA’s methods are counterproductive, it will not stop people from downloading pirated intellectual property, users can still access websites through their IP address.

IV. Analysis

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Amir Zonozi CCT 709, Fall 2011 Prof. Schruers Final Paper Analysis of “The Stop Online Piracy” Act (SOPA) The ideas behind SOPA are noble, however the mechanism in that it functions is faulty. Defenders of SOPA will argue First Amendment scrutiny does not apply, and the bill constitutional because the bill only targets copyright infringement. Floyd Abrams, a defender of SOPA, addresses these matters and acknowledges in the “blockage of noninfringing or protected content,” in a letter to Hon. Lamar Smith. Abrams argues SOPA has procedural protections and is consistent with the First Amendment. Harvard Professor Laurence Tribe, constitution law scholar, responds in an open letter and argues that although Abrams acknowledges the First Amendment and explains why current law stays consistent with the First Amendment, there lacks an adequate confrontation in regards to SOPA. Tribe argues incentive for immunity by online advertising and payment processors if extremely high, it is in their best interest to comply with notification voluntarily without merits of proven infringement, furthermore, there is no process of restitution if a website is found not guilty of infringement and wrongfully blocked or terminated of services from providers. The silencing of speech without a judicial hearing is a violation of prior restraint act deems, therefore Section 13(a) of SOPA violates the First Amendment.

Professor Marvin Ammouri, internet law scholar, who responded separately to Abrams, points out, the bill not only targets copyright infringement but also targets trademark infringement, which is balanced against the First Amendment, therefore the First Amendment scrutiny does apply. Ammouri goes on further to explain copyright laws

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Amir Zonozi CCT 709, Fall 2011 Prof. Schruers Final Paper Analysis of “The Stop Online Piracy” Act (SOPA) typically avoid First Amendment scrutiny, but only in “traditional contours” of copyright. The SOPA bill clearly goes extends past these traditional contours with it’s censoring of non-infringing speech on websites found “dedicated to theft of U.S. property.”

Ammouri goes on to state SOPA targets considerable speech by speakers who engage in no direct or indirect infringement, from websites that enable infringement to advertisers engaged in truthful, non-infringing commercial speech and search engine delivering results. SOPA would result in the censoring of non-infringing speech. SOPA will cause irreparably harm and regulate the speech of ISPs, search engines, DNS providers and online advertising. Ammouri points out that blocking orders would require locating the actual speech in question of infringement, but for example search results are considered protected as opinion, this raises multiple issues.

The procedure proposed by SOPA to remedy intellectual property owners requires the blocking of an entire website, although most of the entire website may be perfectly legal protected speech. Professor Laurence Tribe describes it best, “The First Amendment requires the government proceed with a scalpel - by prosecuting those who break the law - rather than with the sledgehammer approach of SOPA, which would silence speech across the board.” The scopes of SOPA are too broad, ironically even some of the sponsors of the bill would even fall into the scope of infringement. A Russia-based website, YouHaveDownloaded, exposes what people download through BitTorrent by

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Amir Zonozi CCT 709, Fall 2011 Prof. Schruers Final Paper Analysis of “The Stop Online Piracy” Act (SOPA) their IP address, has discovered Sony, Fox, Universal, the RIAA and Homeland Security are guilty of downloading pirated content through torrents (Torrentfreak).

SOPA claims that the bill targets foreign websites, yet by definition of its own language will apply to domestic websites as well. If SOPA is passed website operators will be held liable and are at risk for losing web traffic and search traffic from the US, as well as loss in sales from ad revenue from user-posted copyright infringing content. This will create an Internet with self-censoring websites, negatively effects e-commerce due to fear of legal ramifications and halts innovation, the very essence of copyright. Websites will be eligible for DNS block if containing several infringing links, for example if a user uploads a copyright infringing video on YouTube, YouTube will be held liable because they did not stop the user from uploading the content resulting in YouTube becoming blocked. Therefore websites such as Facebook, Twitter, and YouTube will become liable for userposted content.

SOPA allows the Attorney General authorization to order the blocking of domain name services without a prior judicial hearing is unconstitutional and blocks Americas from receiving information. These DNS blocking of services lists are similar to ones used in China, Iran, and Syria. United States condemns the use of such lists by these regimes, it is not only unconstitutional but hypocritical of SOPA to practice behavior the U.S. government condemns, creating a fundamental contradiction in U.S. Internet policy.

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Amir Zonozi CCT 709, Fall 2011 Prof. Schruers Final Paper Analysis of “The Stop Online Piracy” Act (SOPA)

In conclusion, although SOPA addresses genuine concerns and issues of the theft of U.S. intellectual property; the broad and vague language in the bill; the contradiction in U.S. Internet policy, and the unconstitutional violation of the prior restraint act and restriction of protected speech create irreparable consequences as a result of passing SOPA. SOPA’s methods are counterproductive, it will not stop people from downloading pirated intellectual property, users can still access websites through their IP address. As Julian Sanchez of the Technology Liberation Front eloquently put it, “There is no “right” way to do Internet censorship, and the best version of a bad idea remains a bad idea.”

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Amir Zonozi CCT 709, Fall 2011 Prof. Schruers Final Paper Analysis of “The Stop Online Piracy” Act (SOPA)

Work Cited Abrams, F. (November, 7, 2011). Memorandum to Chairman Lamar Smith: Stop Online Privacy Act. http://www.scribd.com/doc/72589996/Floyd-Abrams-Stop-Online-PiracyAct-Letter-To-House-Judiciary-On-Free-Speech

Ammori, M. (December 8, 2011) Memorandum to Congress: Protect IP, SOPA and standard first amendment analysis. http://ammori.files.wordpress.com/2011/12/ammorifirst-amd-sopa-protectip.pdf

Ernesto (December 17, 2011) Torrentfreak: RIAA and homeland security caught downloading torrents https://torrentfreak.com/riaa-and-homeland-security-caughtdownloading-torrents-111217/

Nagesh, G. (Decemeber 12, 2011) The Hill: Google chairman says online piracy bill would ‘criminalize’ the Internet. http://thehill.com/blogs/hillicon-valley/technology/ 198777-google-chairman-says-online-piracy-bill-would-criminalize-linking

Pallante, M. (November 16, 2011) Statement of Maria A. Pallante: Register of Copyrights before the Committee on the Judiciary. United States House of Representatives. http://www.copyright.gov/docs/regstat111611.html

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Amir Zonozi CCT 709, Fall 2011 Prof. Schruers Final Paper Analysis of “The Stop Online Piracy” Act (SOPA)

Sanchez, J. (December 14, 2011) The Technology Liberation Front: The New SOPA: Now with slightly less awfulness! http://techliberation.com/2011/12/14/the-new-sopanow-with-slightly-less-awfulness/

Tribe, L. (December 6, 2011) The “stop online piracy act” (SOPA) violates the first amendment. http://www.scribd.com/doc/75153093/Tribe-Legis-Memo-onSOPA-12-6-11-1

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