Copyright Unbalanced: From Incentive to Excess (6 page)

Second, SOPA would have authorized a deeply troubling kind of “vigilante enforcement” regime: copyright holders, acting entirely on their own without the intervention even of a prosecutor or a judge or any public official, would have been able simply to provide
written notice
to banks, credit card companies, Internet search engines, and Internet advertisers regarding the allegedly infringing conduct of the foreign websites, and the recipients of such notices would then have five days to cease doing any business with the offending website or risk losing an immunity from suit for damages caused by the website’s continuing operation.
¹¹

Imagine this scenario: A guy walks into a bank. He finds the branch manager and says the following to him: “You know Farmer Jones, whose place is just down the road from mine? He’s been dumping horse manure in my pond, and spoiling it for my livestock. He’s a nasty SOB. Stop doing business with him. Freeze his account.”

In our realspace legal world, the bank will (and should) refuse. “We’re sorry, but we can’t take your word for it,” it will say; “bring us a court order and we’ll comply, but we’re not going to deny Farmer Jones access to our services just because
you
think he’s acting illegally.”

More to the point, in a world where the due process of law is respected, the law surely does not and cannot
compel
the bank to comply with the demand, or offer it a reward for doing so—precisely what SOPA would have done.

It’s not just that SOPA seems to have been drawn from some bad cyberpunk novel; it is, I would suggest, both unworkable and, much more importantly, unjust. It is unworkable because the network architecture virtually guarantees that evasion will be widespread and rather simple to accomplish: tools that allow websites to instantaneously alter their domain names and redirect traffic to the new sites without any special action on a user’s part are already widely available, and will surely become more so if this approach becomes commonplace. SOPA would
not
stamp out copyright infringement on the Internet; it probably wouldn’t even make much of a
dent
in copyright infringement. If there are 50,000 pirate websites out there and SOPA somehow managed to close half of them down, that still leaves you with 25,000 bad guys. And in the world of bits—where information is infinitely reproducible at virtually no cost—25,000 bad guys can do just as much damage to your intellectual property as 50,000 bad guys.

And SOPA is unjust because one of the very small number of truly fundamental principles undergirding our legal system, and the rule of law itself, enshrined (twice!) in our Constitution, is that you may not deprive anyone of life, liberty, or property without due process of law: a
meaningful opportunity
to be heard, before a neutral magistrate, in an adversarial proceeding in which one gets to present one’s own side of the story, in a forum that can lawfully assert jurisdiction over one or one’s property.

“Stop exaggerating!” SOPA supporters might say. “We’ve had a ‘notice and takedown’ scheme in our copyright law for the last decade and a half,
¹²
and it has worked pretty well without any complaints about depriving people of their due process rights. SOPA just extends that scheme to offshore sites not otherwise subject to (or compliant with) US law. Why all the fuss?”

It’s true: we do indeed have a notice-and-takedown scheme in the Copyright Act, under which website owners or operators are given a reward (in the form of statutory immunity from infringement liability) if they “respond expeditiously [to] remove or disable access to” allegedly infringing content upon receipt of a copyright holder’s notification that the content in question is infringing. And it’s also true that the Digital Millennium Copyright Act notice-and-takedown scheme has worked quite well, removing immense quantities of infringing material from distribution over the Internet while imposing few burdens on user expression or the free flow of information.
¹³

But SOPA is hardly notice-and-takedown; it’s more like notice-and-destroy. SOPA wouldn’t “take down”
any
infringing content at all—it would take down the purveyor of the content, the person or entity supposedly responsible for the supposedly infringing distribution. It is one thing to say, as the DMCA does, that website operators have the responsibility to “remove or disable access to” content
they are making available on the Internet
once a copyright holder has identified the content as infringing; it is quite another to say that once a copyright holder has identified you as an infringer we will proceed to banish you, to make you invisible—invisible to the Internet routers, and invisible to the entire commercial infrastructure (credit card companies, advertisers, etc.) on which your continued survival may well depend.

“Well,” SOPA supporters might counter, “if you don’t like the notice-and-takedown analogy, how about the Customs Service? SOPA puts up a cyber-wall around US territory in order to prevent persons operating
outside
US borders from entering and bringing unlawful material—contraband movies and handbags—with them. Customs agents board and search ships at the US borders all the time, and if they find 100,000 DVD copies of
Avatar
in the hold, they seize those copies and ultimately destroy them, and nobody screams ‘due process’ when this happens. SOPA is just like that.”

Except it isn’t. The Customs Service analogy doesn’t work; there are no ships, and there are no borders, no “French” or “Brazilian” or “American” parts of the Internet, but a single global network. We can try to impose borders onto it, through legislative enactments like SOPA, that create an “American” portion of the Internet and encourage the Brazilians to construct a “Brazilian” portion of the Internet, and the Australians to construct an “Australian” portion, and so on;
but why on earth would we want to do that?
Why would we want the Internet to look like the map of the world in 1950 or 1975 or 2005? What gives the net its extraordinary and transformative power (see “Spring, Arab”) is precisely the fact that it has no borders, that it is a single global network that connects everyone as peers. We already have thousands upon thousands of little internets—the world is full of those. But we have only one Internet. Chopping it up into pieces would destroy it.

It’s not just that SOPA would run roughshod over the principle of due process—though it would.
¹⁴
It is the argument that we don’t have to provide due process here because we’re just “seizing property” located “inside” United States borders; and in any event, we needn’t worry that SOPA might violate the due process rights of foreign website owners
because as foreign nationals standing outside US borders, they don’t have due process rights.
As the Supreme Court put it, “Aliens receive constitutional protections [only] when they have come within the territory of the United States and developed substantial connections with this country.”
¹⁵

While we are perhaps not
required
to provide due process to those residing outside our borders, that hardly means that we shouldn’t do so. The Constitution of the United States, remember, doesn’t bestow the right to due process upon us; it declares that the government
won’t deprive us of the due process rights we all already have
by virtue of the fact that we are human beings.
That
is the principle on which we should begin building a just, legal regime for our new global place.

Copyrighted works are important, culturally and economically, and they are worth protecting. They are not, however, sacred objects that we should protect at any cost. The damage SOPA would have done to the technical and legal infrastructure of the net is immense, and its benefits would have been negligible. RIP, SOPA. May your sleep be long and untroubled, and may you not rise, as I fear you will, from your grave to haunt us again any time soon.

NOTES

1
.    Larry Downes, “The Revolt against Congress’s New Internet Piracy Proposals,”
Forbes
, November 28, 2011,
http://www.forbes.com/sites/larrydownes/2011/11/28/the-revolt-against-congresss-new-internet-piracy-proposals
/.

2
.    SOPA (the Stop Online Piracy Act) was only one of the cleverly acronymed bills advancing through Congress last year to deal with online infringement; others included PIPA (the Protect IP Act), COICA (the Combating Online Infringement and Counterfeits Act), and the magnificently named E-Parasite Act—“Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation.” I will use “SOPA” as a generic descriptor of this class of bills throughout this article, referring to the last of the bills, H.R. 3261, available online at
http://www.govtrack.us/congress/bills/112/hr3261/text
, as illustrative of the entire class.

3
.    Among its other flaws, SOPA was damned near incomprehensible. We have, I suppose, gotten used to Copyright Act amendments that, like SOPA, run to 78 pages of mind-numbing prose, but we should not pass over the matter without comment. Madison recognized the danger of this strategy 225 years ago:

It poisons the blessings of liberty itself [and] will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood …. Law is defined to be a rule of action; but how can that be a rule which is little known and less fixed? [This gives] unreasonable advantage to the sagacious, the enterprising, and the moneyed few, over the industrious and uninformed mass of the people. Every new regulation concerning commerce or revenue, or in any manner affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest reared not by themselves but by the toils and cares of the great body of their fellow citizens. This is a state of things in which it may be said with some truth that laws are made for the
few
not for the
many
. (
The Federalist
No. 62.)

Here, for example, is how one figures out the meaning of “foreign infringing site” (to which many of the statute’s provisions are specifically directed). A “foreign infringing site” must be, first, a “foreign Internet site,” SOPA § 102(a)(1), defined as “an Internet site that is not a domestic Internet site.” SOPA § 101(8). A “domestic Internet site” is “an Internet site for which the corresponding domain name … is a domestic domain name.” SOPA § 101(5). A “domestic domain name” is “a domain name that is registered or assigned by a domain name registrar, domain name registry, or other domain name registration authority, that is located within a judicial district of the United States.” SOPA § 101(3).

So it’s a foreign Internet site if it operates under a domain name that is
not
registered by a domain name registry or registrar located in the US. A foreign Internet site is a “foreign
infringing
site” if it is, first, a “U.S.-directed site.” SOPA § 102(a). US-directed site means

an Internet site or portion thereof that is used to conduct business directed to residents of the United States, or that otherwise demonstrates the existence of minimum contacts sufficient for the exercise of personal jurisdiction over the owner or operator of the Internet site consistent with the Constitution of the United States, based on relevant evidence that may include whether

(A) the Internet site is used to provide goods or services to users located in the United States;

(B) there is evidence that the Internet site or portion thereof is intended to offer or provide

(i) such goods and services,

(ii) access to such goods and services, or

(iii) delivery of such goods and services,

to users located in the United States;

(C) the Internet site or portion thereof does not contain reasonable measures to prevent such goods and services from being obtained in or delivered to the United States; and

(D) any prices for goods and services are indicated or billed in the currency of the United States.

(SOPA § 101[8].)

A U.S.-directed site is a foreign infringing site if “the owner or operator of such Internet site is committing or facilitating the commission of criminal violations punishable under [specific sections of the U.S. Code, including the Copyright and Trademark Acts],” SOPA § 102(a)(2), and the Internet site would “be subject to seizure in the United States in an action brought by the Attorney General if such site were a ‘domestic Internet site.’” SOPA § 102(a)(3).

4
.    SOPA § 102(b).

5
.    Ibid.

6
.    SOPA § 102(c)(2)(A).

7
.    For a more detailed overview of how those routing tables work or how Internet message routing works more generally, see chapter 10 (“Governing Cyberspace II: Names”) of my book
In Search of Jefferson’s Moose: Notes on the State of Cyberspace
.

8
.    Steve Crocker, David Dagon, Dan Kaminsky, Danny McPherson, and Paul Vixie, “Security and Other Technical Concerns Raised by the DNS Filtering Requirements in the PROTECT IP Bill” (May 2011),
http://domainincite.com/docs/PROTECT-IP-Technical-Whitepaper-Final.pdf
. Several of the authors were instrumental in the current design of the DNS, and continue to operate critical portions of the DNS infrastructure.