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Don’t Break The Internet

Posted by Mark Leccese  November 27, 2011 06:51 PM

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I’m no lawyer, and I have only an interested journalist’s grasp of Internet law, but I’ve seen legislatures — over and over again — try to fix a problem with a law that causes far more harm than it prevents. The latest example: the Stop Online Piracy Act.

Congress has again produced a piece of legislation with good intentions written so loosely and imprecisely that it has the potential, opponents argue, to “break the Internet.”

On Oct. 26, House Judiciary Committee member Lamar Smith, a Texas Republican, introduced the bill, which is intended to protect copyrights and trademarks. The bill would give the attorney general the power to issue “cease and desist” orders against websites selling counterfeit medicine or counterfeit military goods. So far, so good.

But it would also allow the attorney general to issue “cease and desist” orders to (and make it much easier for any copyright or trademark owner to sue) any online communications platform posting, distributing, or, it appears, linking to copyrighted or trademarked materials on a website.

That means Internet service providers like Verizon, search engines like Google, payment networks like PayPal, and ad networks would be legally liable for the content of websites.

The New York Times and the Los Angeles Times have published editorials over the past few days calling for major changes not only in Smith’s bill but in a similar bill in the Senate.

An editorial yesterday in the New York Times said: “Bills proposed in the House and the Senate have overreached. The legislation needs to be tightened to protect intellectual property without hindering online speech and innovation.”

The purpose of the legislation is to stop business flowing to foreign rogue Web sites like the Pirate Bay in Sweden. But these provisions could affect domestic Web sites that are already covered by the 1998 Digital Millennium Copyright Act. That act has safe harbors protecting sites, like YouTube, that may unknowingly host pirated content, as long as they take it down when notified. … The bill should be made to stipulate clearly that all of its provisions are aimed only at rogue Web sites overseas.

Two weeks ago, a group of huge Internet companies — including Google, AOL, eBay, Twitter, Facebook and Yahoo! — sent a letter to the House Judiciary Committee stating their opposition to the Stop Online Piracy Act.

Unfortunately, the bills as drafted would expose law-abiding U.S. Internet and technology companies to new uncertain liabilities, private rights of action, and technology mandates that would require monitoring of websites. We are concerned that these measures pose a serious risk to our industry’s continued track record of innovation and job-creation. …

The U.S. Chamber of Commerce supports Smith’s bill (which led Yahoo! Inc. to resign from the Chamber):

The U.S. Chamber of Commerce applauds the introduction of Stop Online Piracy Act that will disconnect websites dedicated to online piracy and counterfeiting from the U.S. marketplace. This legislation will provide U.S. law enforcement with refined legal tools to act against “rogue sites,” which steal American jobs, threaten consumer health and safety, and weaken the online commerce ecosystem.

Organizations supporting Smith’s bill include the American Federation of Musicians, the American Federation of Television and Radio Artists, Comcast/NBCUniversal, the Motion Picture Association of America, the National Songwriters Association, the Screen Actors Guild and

That the line-up, for and against — some powerful organizations and many powerful lobbyists on each side.

I’m with the forces against.

First of all, the Digital Millennium Copyright Act of 1998 has been doing its job.

Second, the proposed law would require Internet service providers, and not the courts, to decide what is a copyright or trademark infringement and what isn’t — while under threat of a lawsuit. As three law school professors said in a Nov. 15 open letter to the House of Representatives:

By failing to guarantee the challenged websites notice or an opportunity to be heard in court before their sites are shut down, SOPA represents the most ill-advised and destructive intellectual property legislation in recent memory.

Under the proposed law, free speech rights would be collateral damage in the hunt for “rogue” websites. The Internet isn’t broken; let’s not break it.

Follow @mleccese on Twitter.

This blog is not written or edited by or the Boston Globe.
The author is solely responsible for the content.

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About the author

Mark Leccese, a journalism professor at Emerson College, covered Massachusetts politics, business and the arts for more than 25 years as a newspaper reporter, editor and magazine writer. He has More »

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