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.
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.