Stop Online Piracy Act (SOPA): The House Version of Protect IP (PIPA) and Its Consequences for Our Campus Networks

This week Rep. Lamar Smith (R-TX) and Rep. John Conyers (D-MI) introduced H.R. 3261, the “Stop Online Piracy Act,” which is the House version of the Senate’s bill, “Protect IP” (for background on this bill see previous posts on May 25, 2011; July 8, 2011; July 15, 2011). 

Supporters say such a bill is necessary to stop the mass pirating of intellectual property occurring online, which costs U.S. businesses billions in lost revenue and thousands of jobs.  EDUCAUSE supports the goal of reducing online infringement.  Large-scale copyright infringement undermines expression guaranteed under the First Amendment and threatens the industry growth.  Websites whose main purpose and activity is to enable and promote infringement should be targeted by law enforcement. 

However SOPA not only repeats the mistakes of PIPA, it broadens and extends its scope.  This bill appears to impose sweeping new risks and responsibilities on websites offering legitimate online services and gives rights holders expanded authority to use against any online service they believe is not doing enough to police infringement. 

There are four main provisions in the bill that if enacted would be problematic for operators of campus networks:

• ISPs would be required to comply with all sites that the U.S. Attorney General  lists as infringing intellectual property rights
• Tinkering with the DNS
• Disrupting the DMCA safe harbor provisions
• Felony streaming provisions

A central issue is that the bill's definitions of bad websites are vague and broad.  As the Center for Democracy and Technology noted when the PROTECT IP bill was introduced, that bill did a much better job than its 2010 predecessor of tailoring its definitions to target true bad actors.  As a result, there was less potential for the bill to inadvertently sweep in legitimate websites.  SOPA, however, goes the opposite direction.  The definition of "foreign infringement site" includes not just sites that are dedicated to or even primarily focused on infringement, but rather any site that "facilitates" it. 

Many organizations have been vocal in stating that domain name filtering provisions of the Senate's PROTECT IP Act raise serious problems.  Domain name filtering is trivial to evade and, consequently, would not be effective; it carries risks for cybersecurity; and it sets a bad international precedent; and it can inadvertently affect lawful speech.  Infringement is a real problem, but trying to tackle it via the domain name system is the wrong approach.

SOPA would not only disrupt the domain name system but would also threaten to effectively eliminate the DMCA safe harbors.  The bill would force ISPs to actively police their users’ activities and would essentially circumvent DMCA rules.  Currently, if rights holders believed a site was infringing content, they could send a takedown notice and the content would be removed or the takedown could be contested.  Under SOPA, ISPs would be required to terminate services to any site upon receipt of a letter merely alleging that the site is "dedicated to the theft of US property."  If enacted, this would have serious consequences for operators of campus networks.   

EDUCAUSE believes that legislation that would codify and encourage large-scale reliance on domain names as an enforcement mechanism would be a serious mistake.  Focusing on domain names would prove ineffective at achieving any lasting reduction in infringement.  At the same time, the domain name approach would risk significant collateral damage.  Concerns about online infringement are worthy goals, but this legislation if enacted would impose major new costs and risks on those who provide online communication, as well as to undermine innovation and free expression.

 EDUCAUSE will continue to monitor and report on the progress of this legislation.