- 1. First and Foremost, we believe this bill will set a censorship precedent that will violate the First Amendment, and should be opposed on this basis alone.
- a. While we will discuss specifics about the bill below, we believe it is worth clarifying that this bill is broken from the start. We do not endorse rewrites, corrections, or amendments. We do not believe the bill is fixable (i.e., doing a wrong thing more effectively), and strongly advocate the Senator vote against. If the Senator does not share our views of protecting the First Amendment from government encroachment, we submit the following criticisms of the bill.
- 2. The bill grants the US Attorney General (AG) to fully censor sites the US has no jurisdiction over (section 102). The bill allows the AG to take action against any sites that are “facilitating the commissions of [copyright infringement].” Under SOPA’s definition, which is basically all of them.
- a. There is no qualification that the site be solely for the purpose of theft. Because online copyright infringement is as easy as breathing, any site with a comment box, or upload feature is potentially infringing.
- b. The power to execute the law lies with the AG, not the copyright holder. This grants the US government unilateral censorship over foreign sites.
- c. Implementing censorship protocols and giving their keys to the government is a slippery slope that we wish to avoid.
- 3. America will lose the Moral High ground. This sort of DNS filtering is what is used by China and Iran. It also takes only a few minutes of searching to find services dedicated to circumventing that censorship as well.
- 4. The bill’s stated purpose – to stop online piracy – will be ineffectual.
- a. The internet is too fluid for a legislative action to be an effective bulwark against piracy.
- i. As early as November 2011 alternative DNS services were being set up outside ICANN control to circumvent SOPA. The bill is already broken, and has not been voted on yet.
- 5. The bill will stifle an economy in desperate need of less government intervention.
- a. There are many ways around DNS services today. If SOPA passes, the only industry it will bolster will be the newly created “DNS Masking” industry.
- b. SOPA breaks DMCA’s Safe Haven.
- c. The bill is anti-competitive. This bill will be a financial burden to domestic web service providers.
- d. The risk of a total, immediate shutdown of all revenue-earning services, combined with the unprecedented litigation risk will limit growth in this sector of the economy until the bill’s effect can be made more certain to investors.
- e. The bill will destroy numerous sites that simply do not have an operating budget capable of monitoring user submissions. If you deliberately decide, as a site owner, that it is not cost effective to screen every user submission on your domain, you are a criminal under SOPA.
- f. This legislation is painting with too-broad a brush; the only entities that will be certain to be impacted are legitimately operating companies which will now be opened up to an unprecedented litigation landscape. Individuals who make money off infringement will simply adapt their business model, and some already have in anticipation of the bill passing.
- g. By definition, this bill will impact American internet businesses the most, while the vast majority of infringing services are already run over seas because infringement is already illegal in America.
- h. This bill will affect domestic websites. Any site that can be shown to enable circumvention of website blocking could face penalties. This will include sites where user-posted content shows an IP address or new domain for a blocked site, f9 09, encrypted submissions, ad-hoc VPN, etc.
- 6. The bill’s definition of an offending party is too broad.
- a. Section (103) can be boiled down to the following: An `Internet site is dedicated to theft of U.S. property’ if [a portion of the site is US-directed] and is used by users within the United States and is primarily designed or operated for the purpose of offering services in a manner that enables or facilitates [copyright violation or circumvention of copyright protection measures].
- i. Youtube, Twitter, Facebook, Wikipedia, Gmail and millions of other sites would be “Internet sites…dedicated to theft of U.S. property,” under SOPA’s definition.
- b. Despite advocates assurances that no AG would rule against sites that are clearly not “dedicated” to the facilitation of infringement, (Facebook, Twitter, etc), this is not what the language of the bill says. Any sites that legal precedent identifies as a non-infringing site could immediately become a locus for infringers.
- 7. The bill compliance standard is too generic. The bill repeatedly uses the phrase “technically feasible and commercially reasonable measures” for service providers to comply with the law. These terms are too generic, and we fear that this will result in
- a. an over-reach of judicial precedent for what will be deemed as “reasonable”
- b. an increase in the cost of doing business in one of the fastest growing parts of the economy
- 8. The bill’s defense standard is too generic. The bill allows a defendant to show they did not have the “technical means to comply … without incurring an unreasonable economic burden”.
- a. Once again, what is “reasonable” will be left to the courts to decide, and the lack of definition of this requirement creates enormous uncertainty with respect to both liability and the cost of compliance.
- b. Section 103(b) requires that payment providers and ad networks to cut off all services to the accused site with 5 days unless a counter-notification is received from the accused site. However, there is nothing in the bill that would require the accused to be notified of the alleged infringement. Ad revenue and service revenue can essentially be blocked, without notice and without proof, for any website that can be painted with the bill’s overly-generic definition of an offending party.
- c. Section 103(b) allows an accused site to file a counter-proposal only if they submit to US jurisdiction (if a foreigner), and state under penalty of perjury that your product does not fit the definition of an “Internet site…dedicated to theft of U.S. property.” It’s nearly impossible to not fit that definition, so filing a counter-notice runs the risk of perjuring yourself, and paying all the legal fees of the accusing party.
- d. Because the bill has no requirement provision for the site owner to be notified of a claim filed against them, it is unlikely that any counter notice will be filed within 5 days for many smaller companies.
- e. Under SOPA, here is a very likely sequence of events:
- i. Plantiff accuses your site of infringement and serves notice to PayPal and Google, et al. PayPal and Google must shut off your payment services and ad services in 5 days. You are never notified.
- 1. Plantiff accuses your site of infringement, and you don’t respond. Plantiff files an in rem lawsuit, and seizes control of your domain.
- ii. If a service provider fails to shut off service, then the plantiff may now take you to court for infringement.
- 1. Once you become aware that you’ve been accused of infringement, you either
- a. let your services get cut off by taking no action, or
- b. serve a counter-notice, which places you under US jurisdiction (if you’re not in the US) and sets you up for a perjury charge.
- 2. If you respond with a counter-notice, then Plantiff may now take you to court for infringement.
- f. Even the threat of the above process will be enough for many sites to just throw in the towel before going to court with the RIAA and MPAA.
- 9. It will take us back years in technical advancement. DNS is not a perfect technology, and to base an entire policy on its use is foolish and naïve.
- a. DNSSEC would be considered an illegal circumvention tool under SOPA.
- b. The DNS filtering and anti-circumvention provisions would force a huge step backwards and for securing critical infrastructure.
- c. A name resolution failure from a nameserver subject to a court order and from a hacked nameserver will be indistinguishable. Users running secure applications need to be able to distinguish between policy-based failures and failures caused by malicious behavior or downgrade attacks will be prolific.
- d. The DNS system is based on trust. Legitimate redirection protocols will be indistinguishable from malicious redirection under this bill.
SOPA Talking points
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