Law professors react to PIPA, SOPA legislation

Jan. 13, 2012, 2:38 a.m.

Congress is expected to consider two bills when it returns from recess on Jan. 24: the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP Act or PIPA) and the Stop Online Piracy Act (SOPA). The legislation is of major concern to Stanford thought leaders, in addition to nationwide legal experts, online security experts, Internet activists and the founders of many of Silicon Valley’s largest companies.


“The answer is to innovate, not to pass stupid laws that are going to screw up the Internet,” said Anthony Falzone, executive director of the Fair Use Project at the Stanford Center for Internet and Society (SCIS) at a Dec. 7 event hosted by SCIS called, “What’s wrong with SOPA?” The panel convened experts on Internet infrastructure and security, digital intellectual property and Silicon Valley business to articulate many of SOPA’s problems.


More than 150 people attended the Law School event, which was “not meant to give equal time to both sides,” according to Falzone.  The audience did include two representatives from the Motion Picture Association of America, supporters of SOPA and PIPA, who spoke up during a question and answer session.


“There were things about this bill that people in Silicon Valley needed to know – that is lawyers, entrepreneurs and technology people,” Falzone said. “Our goal was to put together an array of people who could speak to each one of those sets of considerations.”


Professor Mark Lemley, director of the Stanford Program in Law, Science and Technology, spoke in a January interview with The Daily of the necessity of publicizing what he characterized as the incredible harm of this potential legislation.


“PIPA was introduced in the Senate in early 2011 and it went through the Senate Judiciary Committee unanimously… mostly I think because people hadn’t paid attention to it,” Lemley said.


Lemley believes this unanimous action occurred because PIPA was a less extreme bill than SOPA – a conscious legislative decision to make the “lesser of two evils” look like a healthy compromise.


Both pieces of legislation are almost exclusively supported by traditional media companies like Viacom and members of Recording Industry Association of America, as well as companies heavily reliant on brands such as Nike, the NBA and Pfizer.


The founders of Google, Yahoo, Twitter, LinkedIn and many other Silicon Valley giants published an open letter warning of the dangers of SOPA and PIPA.


The letter appeared as a paid advertisement in The New York Times, The Washington Post and other newspapers. It predicted SOPA and PIPA would, “have a chilling effect on innovation” and change “the very basic structure of the Internet.”


The letter also raised the legal concern that this legislation allows the closure of websites without due process and could be used to stifle legitimate speech.


“If we just shut down the Internet there would be a lot less piracy, right?” Lemley said. “But, there is a lot of socially valuable material that we get only because of the Internet. “


In the most severe version of SOPA the Attorney General would have authority to bring action against websites accused of “committing or facilitating online piracy.”


The bill also provides for a system of notifications directly from the copyright holder to web services like Internet service providers (ISP) and search engines. These web services are then able to suspend service to specific sites and are immune from prosecution for doing so in error.


“You wouldn’t necessarily even bring anybody into court,” Lemley said. “So each individual ISP who gets this notice has now got to keep a separate black list.”


Falzone said he fears a world in which websites could be shut down, “in a completely invisible way.”


“You would have people doing these deals in the proverbial smoky backroom… picking up the phone and saying,  ‘Wouldn’t it be so unpleasant if we had to go through an elaborate process and spend money on lawyers?’” Falzone said.


Of further concern is that the act of physically limiting the websites that computers can access would not only fundamentally change the way the Internet currently operates, but in so doing would negate current efforts at improved Internet security.


For Lemley, the physical blocking of websites has foreign policy ramifications as well.


“It’s awfully hard to persuade the Chinas and Irans of the world that they should open their society and Internet to things they object to when we won’t open our society to things we object to,” Lemley said.


A third bill that Congress will consider, the Online Protection & Enforcement of Digital Trade Act (OPEN Act) may address some of the professor’s concerns with SOPA and PIPA.


This legislation would differ from SOPA because it would not allow for the physical blocking of websites; rather it would block funding for the infringing websites.  It would also be enforced by the International Trade Commission and do away with the notification system of SOPA.


Falzone predicts that what Congress will ultimately pass will be similar to the OPEN Act and not SOPA. Falzone also said he foresees a more prolonged battle.


“Silicon Valley has now really thrown their weight behind [opposing SOPA & PIPA], and it is a real fight… everybody has brought their big guns.”

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