Letter from the President: Why ONA opposes SOPA

By on January 5, 2012

Dear members,

There’s been a lot of talk lately about the Stop Online Piracy Act, better known as SOPA. With the House Judiciary Committee set to resume debate on the bill later this month, we thought it time to weigh in. As an organization representing thousands of content creators, ONA strongly condemns infringement of intellectual property and the violation of copyright. However, we believe SOPA would do little to stem those problems and would actually cause harm to the Internet and to the American public.

Indeed, the act — and its counterpart in the Senate, the PROTECT-IP Act (PIPA) — would inappropriately shut down websites, disrupt the free flow of legitimate information and limit Americans from fully exercising their First Amendment rights.

That is why, consistent with ONA’s desire and mission to keep the Internet open and vibrant, we join with others to oppose SOPA and PIPA. Furthermore, we encourage our members to contact their representatives in Congress and ask that they, too, oppose these bills.

Here’s our thinking:

Rep. Lamar Smith (R-Texas), the chairman of the House Judiciary Committee and the member who introduced the legislation, says the act is designed to fight online trafficking in copyrighted materials and counterfeit goods. He lists a large number of content creators and organizations who have come out in support of SOPA.

Despite the laudable goals, the legislation is seriously flawed. As currently written, SOPA would allow the U.S. Justice Department to effectively shut down any foreign websites, including those owned by U.S. companies (e.g., ebay.fr, google.uk, and amazon.au) accused of infringing (or enabling the infringement of) copyrighted content. And the shutdown isn’t just for the alleged offending portion of the site. The entire site could be shut down.

To that end, SOPA allows the Attorney General to require U.S. Internet service providers to prevent access to an offending site, U.S. search engines to remove links to the site, payment services providers (such as Paypal, VISA and MasterCard) to cut off funds to the site, and ad networks to halt all advertising on the site.

An accusation of infringement (or enabling infringement) can also emanate from any private party — American or foreign — that obtains a court order declaring a foreign site dedicated to infringement. With such an order, payment services would have to cut off funds and ad networks would be required to halt all advertising on the site.

Forcing payment services and ad networks to mete out punishment raises a host of concerns. For starters, SOPA stipulates that any payment service or ad network that fails to comply with a notice served by the copyright owner and based on the court order can be sued for damages and held liable. On the other hand, any service that cuts ties with a suspected site after receiving notice of a court order, may not be sued for damages by that site “for any acts reasonably designed to comply” with the order.

It’s not hard to imagine, then, that a service provider, acting with abundance of caution and out of its own self-interest, will simply cut off services to entire sites that have been accused of infringement, even if the court order only applies to portion of the site. Such actions could even extend to other sites owned by the same entity.

We also see problems with the bill’s efforts to punish those who make available any information, product or service that could be used to circumvent the efforts of Internet service providers to block access to allegedly infringing websites. This provision applies to U.S. websites as well as foreign sites. So, if users of Facebook, for example, provide tools or instructions for gaining access to blocked websites, all of Facebook could be subject to sanctions under SOPA.

The fact is, such technologies and services have multiple and legitimate purposes. For example, they enable free and anonymous speech, of which the U.S. has a rich history. “Arab Spring” protestors, for example, used these tools to circumvent government blocking of their websites and communications. However, because such services can also redirect users to infringing sites, any site offering such a tool or service — U.S. or foreign — could be targeted through SOPA and shut down.

Meanwhile, we believe SOPA will almost certainly have a negative effect on one of the most profound cultural developments of the web: the rise of social media and user-generated content.

Any website that ingests user-generated content could be under constant risk for insufficiently confirming that uploaded content is neither infringing (applicable only to non-U.S. sites) nor offering information on circumventing website blocks (applicable to U.S. and foreign sites alike). Failure to do so could put the entire site at risk of a SOPA action.

This is a major reversal and a mistake. In the Digital Millennium Copyright Act, Congress freed intermediaries from liability, which permitted innovation that would not have occurred otherwise. Absent the DMCA, there would be no Facebook or YouTube. No one would have created services that allow users to post content that might be infringing if the operators of the services could be held liable for every infringement. SOPA would be a retreat from this fundamental principle.

These aren’t our only concerns with SOPA, but they represent the most troubling aspects of the proposed legislation, in our opinion. And so, while ONA supports measures to curb infringement and copyright violations, those measures should be narrow and specific. SOPA is not. SOPA is an overly broad attempt to regulate technology that can and is overwhelmingly used for legitimate purposes in order to catch those who use it for illegitimate purposes.

For more on SOPA, we suggest the following:

Christine Montgomery
ONA President