PublishedOctober 28, 2011

Initial Thoughts On House Online Piracy Bill

On initial glance H.R. 3261, the Stop Online Piracy Act, introduced in the House this week, is twice was long as its Senate counterpart the PROTECT IP Act and proposes broad, sweeping Internet regulation.

Cybersecurity issues:

If enacted, this bill would drive internet traffic and domain name routing that we now control outside of the US, compromising our intelligence capabilities and threatening the safe functioning of the global internet.  It breaks DNSSEC – the biggest Internet security patch for the Internet ever.

So in other words, the questions members of Congress need to ask themselves before supporting this is: ‘Do you trust anarchists and groups like PirateBay to tell Americans what the IP address is for Bank of America? Or the IRS?  Or for Microsoft critical updates?  That’s what you get when people use foreign DNS servers.  This movement to offshoe DNS servers is starting already.

Censorship issues:

This bill puts the US government in the business of Internet censorship, just as our ambassador to the WTO is hassling China about their Internet censorship.  This dramatically undercuts US credibility on a crucial market access issue of great importance to the Internet sector — one of America’s chief exports.

Undoes Liability Protections, Requires New Internet Monitoring:

This bill essentially breaks the Digital Millennium Copyright Act — the ‘third rail’ of IP policy. The DMCA has given tech and other companies protection from liability for what users do on their sites or networks – provided they respond quickly to copyright infringement complaints by taking down material when notified. But this pair of bills would now require Internet monitoring, and will rewrite IP liability rules at a time when the smartphone industry is melting down over patent litigation.  We don’t want the flurry of patent lawsuits for the Internet industry too.

Private Right of Action:

Much has been made about the new powers the Senate would give directly to copyrights holders to force other businesses to cut business ties to offending domains. While the House technically put up a small hurdle, the effect if essentially expected to be largely the same. While the Chamber of Commerce and Republicans have typically objected to private rights of action as field days for trial lawyers, somehow many are supporting it in this bill.

The House bill imposes a what looks like a DMCA-style notice-and-takedown system (meaning there is no judicial oversight) but without any ISP immunity for responding to a notice.  All the rightsholder-facing immunities only kick in post-order.  Here, ISPs may receive notices absent any court order.

Post-notice, the rightsholder can still bring a court action, regardless of whether the site at issue responds to the notification.  So the House version would impose this extrajudicial layer up front — but it gives no certainty to the intermediary, and offers the rightsholder no reason not to proceed with court process.  In other words, the difference between the two is that the Senate bill concedes it regulates the Internet, whereas the House bill is in denial.

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