Stop SOPA. Save the Web.

Today, the House Judi­ciary Com­mit­tee held a hear­ing about the Stop Online Piracy Act (SOPA).  SOPA — along with its Sen­ate coun­ter­part, PROTECT-IP — is a dis­as­ter wait­ing to hap­pen.  Call­ing it a blunt instru­ment would be a com­pli­ment.  Essen­tially, it gives pri­vate actors the extra­ju­di­cial power to cut off traf­fic and adver­tis­ing money to sites that are 99.9% legit­i­mate, but hap­pen to have a few links or pages related to infring­ing mate­ri­als.  I’m not talk­ing about ran­dom web­sites, either:  Etsy.  Flickr.  Tum­blr.  All of them could face crip­pling lia­bil­ity that under­cuts the exist­ing DMCA notice-and-take­down sys­tem that — while most def­i­nitely imper­fect — has enabled the birth and flour­ish­ing some of the most inno­v­a­tive web­sites we have today.

Google’s writ­ten tes­ti­mony presents the best prac­ti­cal analy­sis I’ve seen of why SOPA will kneecap the Inter­net:

Imag­ine you are a small busi­ness that has estab­lished a new web­site that “enables or facil­i­tates” (to use the lan­guage of Sec­tion 103) other small busi­nesses to sell cloth­ing and acces­sories. Let’s fur­ther imag­ine that 99 per­cent of your sell­ers are entirely legit­i­mate, but that, unbe­knownst to you, one seller has recently begun sell­ing coun­ter­feit hand­bags and T‑shirts that par­ody famous copy­righted logos. Finally, let’s imag­ine that you fully com­ply with all the laws that gov­ern Inter­net inter­me­di­aries, includ­ing the “notice-and-take­down,” “repeat infringer,” and other require­ments of the Dig­i­tal Mil­len­nium Copy­right Act’s (“DMCA”) safe har­bors.

This is the kind of com­pany that is the model of an inno­v­a­tive Amer­i­can startup, and can hardly be called a for­eign rogue site. Yet, under SOPA, your entire site could be deemed to be “ded­i­cated to theft” because, unbe­knownst to you, a “por­tion” of your site is being “pri­mar­ily oper­ated for” unlaw­ful activ­ity by one of your sell­ers. Any­one who believes they have been harmed by this sin­gle bad seller (not just the own­ers of the spe­cific copy­rights or trade­marks being infringed) can send a “ter­mi­na­tion notice” to the pay­ment proces­sors that you and your other sub­scribers rely on. The com­plain­ing party need never have made any effort to con­tact you to resolve the issue or to avail them­selves of your DMCA “notice-and-take­down” pro­ce­dures.

The first you would hear about this is when your adver­tis­ing and pay­ment ser­vices for­ward the alle­ga­tion of infringe­ment. You would be in the dif­fi­cult posi­tion of hav­ing to judge whether the hand­bags are coun­ter­feit and whether the T‑shirts are pro­tected by fair use. You would have to hire lawyers and inves­ti­ga­tors. If you fail to send a coun­ter­notice within five days, you could find your site effec­tively out of busi­ness, and the small busi­nesses that rely on your ser­vices could find them­selves cut off from their cus­tomers.

All of this could hap­pen to your busi­ness with­out any prior due process or court involve­ment. Even if you do pro­vide a coun­ter­notice to your pay­ment and adver­tis­ing ser­vices, those providers remain free under Sec­tion 104 of the bill to ignore it. And even if they do accept your coun­ter­notice, the com­plainant can still bring a court action directly against you. Given the breadth of the def­i­n­i­tion of “site ded­i­cated to theft,” you may find your­self hard-pressed to defend your­self, notwith­stand­ing your good faith efforts. Fac­ing these poten­tial risks, per­haps you would think twice about estab­lish­ing your busi­ness in the first place.

Nor­mally I would take a lit­tle more space here to out­line my con­cerns and why you should care, but oth­ers have already done that bet­ter than I ever could.  This thing is bad.

Here’s what you need to do: speak up.  Send a mes­sage to your con­gres­sional rep­re­sen­ta­tive telling them how dan­ger­ous this bill is for the Inter­net.  At the hear­ing today, Rep. John Cony­ers laughed about claims that this bill will kill the Inter­net.  Let Con­gress know this is no joke.

Image: cc-by-sa /​/​ Quinn Dom­browski