Stop Online Piracy Act: Putting the extra in extraterritoriality

The Internet has been abuzz with the latest attempt to regulate the Internet, the Stop Online Piracy Act (SOPA). I’ve finally managed to read the proposed bill, and it really is as bad as everyone is talking about. To quote Treebeard in The Two Towers: “There is no curse in Elvish, Entish, or the tongues of men for this treachery.”

How bad is it? This is a law which has as its main objective the complete and utter obliteration from the Internet of any foreign site suspected of infringing intellectual property. The Bill defines a foreign site subject to the law like this:

“(1) the Internet site or portion thereof is a U.S.-directed site and is used by users in the United States;
(2) the owner or operator of such Internet site is committing or facilitating the commission of criminal violations punishable under section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of title 18, United States Code; and
(3) the Internet site would, by reason of acts described in paragraph (1), be subject to seizure in the United States in an action brought by the Attorney General if such site were a domestic Internet site.”

I have highlighted the part that I find the most problematic. The site assumes criminal violations without any court decision to that effect. That alone should serve to disqualify the agreement for reasons of due process grounds alone. But things get worse after that. The Attorney General can initiate court proceedings against the site’s registrar, or the site directly. Assuming the site does not have any representative in the U.S., this means that websites will be subjected to extraterritorial enforcement that they will not be able to defend against without incurring in great expense. Not only that, this will turn Internet domain registrars into enforcers of IP, and if we have learned anything from the DMCA, intermediaries will simply comply to orders of disconnection with little evidence. One need only be accused to have his/her domain seized. As David Post comments in the Volokh Conspiracy:

“Here’s the Internet we get after this becomes law. The prosecutor walks into a courtroom with evidence that a website — or, more likely, 1000 websites — are “dedicated to infringing activities.” If he/she can persuade the judge of that, those websites vanish from the Net (through a complex wave of judicially-mandated action that has to be obeyed by ISPs, domain name registrars, etc.). No need for messy “adversary proceedings,” “due process,” or similar niceties. No need to bother with details like “is there a defense to the charge?” No need even for the prosecutor, under the statutory terms, to prove what a copyright plaintiff would have to prove if this were an ordinary infringement suit: i.e., that the website operator in question had “actual knowledge of specific infringing files” on the site in question. None of that.”

There are no redeeming features to this proposed piece of legislation. The word “chilling effect” is very clear when reading this proposal, as EFF has stated, finally Hollywood gets a chance to destroy the Internet as we know it. Hopefully, this law will meet the fate of similar misguided efforts.