An Updated Analysis: Why SOPA & PIPA Are A Bad Idea, Dangerous & Unnecessary

from the enough-of-the-bull dept

Okay. A few months back, I wrote up what I called “the definitive” post on why SOPA & PIPA were very bad bills. Some things have changed since then, so I thought it might be useful to do an updated post on the subject. On top of that, one of the key claims by supporters of these bills is that those of us opposed have been spewing false claims to increase the hysteria. While it’s true that there is some misinformation making the rounds, I’ve seen no evidence that it’s limited to the anti-SOPA/PIPA crowd. In fact, it appears to be worse on the part of supporters. While some anti-SOPA/PIPA folks may be misinformed about the specifics, they are at least speaking honestly. The pro-SOPA/PIPA forces appear to be deliberately misstating the facts.

So, let’s look at the facts. PIPA & SOPA are (now) very similar bills, both with significant problems. In fact, the remaining “differences” in the bills each have serious problems, which is why neither bill is a “better” bill, since both are terrible. The claimed purpose behind these bills is to give both law enforcement and private individuals/companies tools to go after “foreign” websites that are offering infringing (either copyright or trademark) content. The bills offer two ways to do this: via the Attorney General taking action against the sites, or via a “private right of action,” in which copyright or trademark holders take direct action themselves against a site they believe is dedicated to infringement.

The bill does require a half-hearted attempt to “contact” the operators of the sites being accused, but if the AG or rightsholders feel they can’t reach the owners, they can then go directly after “the site” itself (an “in rem” process, rather than an “in personam”). Following a (literally) one-sided court hearing, a judge can then put the accused site on what is effectively a blacklist. If it’s the AG bringing the action, it means that search engines or (under PIPA) “information location tools” — a broad term that covers an awful lot of the internet — have to magically figure out ways to block any and all links to the site in question. If it’s either the AG or private rightsholders, then payment processors and ad networks would be forced to stop doing business with the sites on the blacklist.

Under both bills, the definitions of what is a “site dedicated” to “infringement” or “theft of US property” are pretty broad and open to abuse. While supporters of the bills love to insist they’re narrowly tailored, a simple look at PIPA shows that’s wrong. It notes that you can be dedicated to infringement if the key service you offer facilitates infringement. Think about that for a second. Pretty much every user generated content site or communication tool… or… computer, can “facilitate” infringement. Now, supporters of the bill insist that most sites are safe because the bill says that there’s “no significant use other than… enabling or facilitating” infringement. But, again, note they’re not saying that it has no significant use other than infringement. It says no significant use other than enabling or facilitating infringement. That’s pretty much the entire internet there. A site may only rarely be used to infringe, but its primary function can still ‘facilitate’ infringement.

In addition, SOPA has an anti-circumvention rule, which makes it incredibly risky to provide any kind of service that that accidentally gets you around the blacklist. (VPN provider? Too bad!) Even worse, the anti-circumvention provision is not limited to foreign sites.

The “only impacts foreign sites” claim is also a red herring. It’s a favorite of the pro-PIPA/SOPA folks, but it’s a lie. While the current bill targets foreign sites, all of the remedies and enforcement require compliance by domestic sites. That’s costly. I recognize that policy analysts, lawyers, lobbyists and politicians who have never actually run a business think this stuff is simple, but for those of us who actually run companies, this is terrifying. We now have to worry about staying in compliance with a broad law that’s almost impossible to comply with in any realistic manner. In our debate yesterday, the US Chamber of Commerce’s Steve Tepp insisted that there was “no liability” for any domestic site. This is ridiculous. What he meant was no direct monetary liability. Leave it to an out of touch policy guy to think that it’s only a liability if there’s the potential to cost you money in court. The liability is in the possibility of being dragged to court over this. It’s in the possibility of facing additional punishment/sanctions for failing to obey an impossible-to-obey court order to cut off certain users. That is a tremendous liability.

There are additional provisions that are troubling, including SOPA’s inclusion of “felony streaming” provisions, that could lead to jail time for those who lip synch over songs and put that up in a YouTube video, or those who embed infringing YouTube videos on their own site. PIPA does not have that directly, but there is a companion bill in the Senate that has similar things.

So why, specifically, are these two bills so bad:

  1. They will not do anything to solve the problem. This is the biggest point. In the past 35 years, dating back to the 1976 Copyright Act, the legacy content industries have gone back to Congress an astounding sixteen times and gotten them to expand copyright law in some form or another to deal with their own inability to adapt. That’s just about every two years. And what has any of it done to reduce the amount of infringement? Nothing. Absolutely nothing. But now this is suddenly the magic bullet?

    More to the point, multiple studies have shown that “piracy” is almost always a “service” issue — in that people resort to infringing options when no good options exist. A detailed four-year study on this issue around the globe found, consistently, that infringement was never an “enforcement” issue — but exclusively a business model issue. Provide services that give people what they want, and watch piracy decline. Lots of people have shown the industry how this works, and they still ignore it. A perfect example is how Valve Software saw lots of piracy in Russia — a hotbed of infringement — and used that as free market research to establish a presence in Russia, which is now a huge moneymaker for them. Not by “enforcing” against infringers, but by offering a better legitimate service.

  2. Putting massive liability and compliance costs on startups will hinder the most necessary innovation and jobs. As described above, these bills work by making tech companies responsible for creating/policing the blacklist. That’s expensive and daunting. Many startups won’t even bother to work on innovative services because the legal fees will just be too high. Others will simply start elsewhere. At a time when startups are the only net creator of jobs these days, do we really want to burden them all with significant new compliance costs and liability? These bills are jobs and innovation killers.
  3. These bills go against American principles of freedom of speech. Over 100 law professors — including one of the most respected Constitutional scholars, Laurence Tribe — have made this point repeatedly. Creating a blacklist is not where the US should be going — and it specifically goes against our messaging to other countries on the importance of an open internet and basic internet freedoms. Sure, supporters of the bills will point out that censoring “political speech” is different than censoring sites that have some infringing content, but that ignores reality. We’ve seen oppressive regimes abuse copyright law to oppress dissidents. SOPA & PIPA give those regimes the perfect cover story for doing more of that: just claim they violated copyright law, and the US says it’s just dandy to censor and suppress speech.
  4. The immunity provisions in the bill sneak through broad powers by pretending they’re “voluntary.” Supporters insist that these bills will only be used against the worst of the worst. But they’re purposely ignoring the broad immunity provisions in the bill — and the history of similar immunity provisions. The immunity provisions basically say that, if you become aware of a site that may be infringing, you will get full immunity if you take the actions prescribed in the bill (i.e., cutting them off). As we’ve seen with the DMCA, such a grant of immunity means that if you hear of a site that is accused, you are very, very likely to cut them off, just to make sure you retain that immunity. Why risk it otherwise? Only a few sites may stand up to the worst abuses. The rest will want to make sure they don’t have any future legal fight and will quickly cut the site off — at which point there’s no real recourse.
  5. These bills will be abused. Just like every copyright law that’s been passed. It’s common knowledge that the DMCA is widely abused to take down content that is not infringing. But, at least with the DMCA it’s targeted at specific content. With SOPA, entire sites will be taken down. Supporters insist that a “court reviews” these, and so there’s no worry there. Tell that to, the blog that was incorrectly seized and censored for over a year with no due process under existing law (something we should definitely be revisiting). How can we say the new law won’t be abused when the old law is already regularly abused?

This is not a “theoretical” problem. This is not a “hypothetical” issue. These are not exaggerations. This is what’s in the bill today. And it’s all a huge problem.

Yes, the DNS blocking provisions of the original bills made these even worse, but delaying (not removing) these provisions doesn’t fix all of those other problems.

As for some of the misinformation — including the claims that SOPA would be used to take down US sites — well, that’s the supporters’ own damn fault. They pushed to make SOPA so bad that that absolutely was the case with the original bill, and only changed after massive pushback from the online community. If they hadn’t pushed to include that in the first place, perhaps this wouldn’t be an issue. But, really, worrying about the takedown of American sites is an issue that’s separate from SOPA/PIPA… in that it’s already allowed under US law. Just witness the Dajaz1 case we mentioned above… and worry about the fact that we didn’t have this day of protest before the ProIP Act was approved, which sneakily allowed that to happen.

These bills do not solve the problem, because they’re targeting the wrong problem. And, to make matters worse, they do so in a way that creates tremendous collateral damage. This is no way to regulate.

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Comments on “An Updated Analysis: Why SOPA & PIPA Are A Bad Idea, Dangerous & Unnecessary”

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demented (profile) says:

Here’s another laudable site that opposes SOPA/PIPA.

And strictly speaking, they shouldn’t even be threatened by it – they only release links to books and media IN THE PUBLIC DOMAIN. But they know how bad this is! And it will only take ONE jackass in the publishing industry to figure, “Nobody will buy our new edition of “Jane Eyre” if they can get it for free! DIE!”

John Doe says:

Who cares if it only targets foreign sites?

We are told that this only targets foreign sites but who cares, there are no borders on the internet. So all sites are US sites the same as they are UK sites, German site, etc. All sites are global by the very nature of the internet so it will absolutely affect those of us in the US.

Loki says:

Re: Who cares if it only targets foreign sites?

As I’ve stated before, even if SOPA/PIPA doesn’t allow the take down of US sites (and they don’t try to sneak it back in last minute), all they really need is some provision in TPP (or some other “trade agreement”) that allowed any member nation take down a site that violated any other member nations version of SOPA/PIPA

Pirate Bay violates the Netherland’s version of SOPA/PIPA, hey we can use the provisions of TPP (if they can sneak such a provision is and Netherlands actually signed onto an agreement like TPP) to shut them down in the US.

YouTube violates India’s version of SOPA/PIPA, we can use the provisions of TPP (agian assuming they get such a provision through and India signed on) to shut them down in the US.

And if you don’t think they are going to try to push such a provision in TPP (or whatever “trade agreement” they work on after TPP) you clearly haven’t been paying a lot of attention to what they are doing (or your being dishonest).

Mike Shore says:

The History of Anti Innovative legislation

I’d like to see a review of the history of anti innovative legislation, starting with the DMCA, the special 301 report, copyright extentions, bad patent laws, patent trolls, all the way up to SOPA/PIPA. Basically all the big industries (including pharma) are trying to block any innovation, and the US government has been almost completely bought out.

Jay (profile) says:

Re: Re: The History of Anti Innovative legislation

That’s nothing. The entire corporate personhood idea came from being a footnote in the write up for a corrupt judge.

Also, the train industry gets bailed out because it doesn’t want to compete with planes. It’s far easier to get money as a subsidy than to try to earn the trust of the people.

And I could go on and on and on…

robin (profile) says:

Re: The History of Anti Innovative legislation

…is the history against “piracy”, and there’s nothing new about it.

Incumbents have been fighting competition for centuries with laws. This book is very thorough, if not rather academically dry:

Entitled “Piracy: The Intellectual Property Wars from Gutenberg to Gates” by University of Chicago professor Adrian Johns.

Modplan (profile) says:

And here’s why any country should be worried about the SOPA and PIPA from Michael Geist (currently taking part in the blackout, so you may have to wait to read the full article):

First, the SOPA provisions are designed to have an extra-territorial effect that manifests itself particularly strongly in Canada. As I discussed in a column last year, SOPA treats all dot-com, dot-net, and dot-org domain as domestic domain names for U.S. law purposes. Moreover, it defines “domestic Internet protocol addresses” – the numeric strings that constitute the actual address of a website or Internet connection – as “an Internet Protocol address for which the corresponding Internet Protocol allocation entity is located within a judicial district of the United States.” Yet IP addresses are allocated by regional organizations, not national ones. The allocation entity located in the U.S. is called ARIN, the American Registry for Internet Numbers. Its territory includes the U.S., Canada, and 20 Caribbean nations. This bill treats all IP addresses in this region as domestic for U.S. law purposes. To put this is context, every Canadian Internet provider relies on ARIN for its block of IP addresses. In fact, ARIN even allocates the block of IP addresses used by federal and provincial governments. The U.S. bill would treat them all as domestic for U.S. law purposes.

Second, Canadian businesses and websites could easily find themselves targeted by SOPA. The bill grants the U.S. “in rem” jurisdiction over any website that does not have a domestic jurisdictional connection. For those sites, the U.S. grants jurisdiction over the property of the site and opens the door to court orders requiring Internet providers to block the site and Internet search engines to stop linking to it. Should a Canadian website owner wish to challenge the court order, U.S. law asserts itself in another way, since in order for an owner to file a challenge (described as a “counter notification”), the owner must first consent to the jurisdiction of the U.S. courts.

anonymous says:

only the copyright trolls that frequent techdirt will disagree with you, Mike. the trouble is, no matter what action is taken today or any other day, the bought and paid for government officials in all countries, not just the US, will continue down the path to get these stupid bills passed. the only true way to stop ‘file sharing’ is to abandon the ridiculous copyright laws that exist now and start again. the emphasis has to be on service to the customer and competition between providers of the service. if that doesn’t happen, common sense will never out way money!

Jober (profile) says:

A great, succinct analysis. Thanks.

What do you think are the odds that these bills were never intended to be passed as they are written, but rather they are collectively just a cats-paw intended to get a slightly-less-awful version by as a “reasonable compromise”*? Given the cartoonish, over-the-top policies outlined in SOPA/PIPA, that seems more and more likely to me as the debate drags on and the “manager’s amendments” pile up.

*There is no such thing as “reasonable” with this kind of prior restraint.

Loki says:

Re: Re:

No I think they were legitimately intended to pass as written. Admittedly they’ve had to make a few compromises here and there (the safe harbors in DCMA for example), but they have been pretty successful in pushing through every other piece of legislation (from their various copyright extensions/expansions all the way through to ACTA). Even most of the stuff they were forced to cut from ACTA they are trying to squeeze in to TPP, so they aren’t really concerned if they have to backpedal some on these bills either. What they can’t push through this time, they’ll just try to tack onto the next series of bills (and there WILL be a next series of bills) they try to push through Congress.

They just assume that because the general population has remained largely passive so far, that they will always remain largely passive. As it even says in the Declaration of Independence:

and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

They fail to take into account that at some point their actions become no longer sufferable, but by then they are too ingrained into their behavior to be willing to stop.

Hephaestus (profile) says:

“the legacy content industries have gone back to Congress an astounding sixteen times and gotten them to expand copyright law in some form or another to deal with their own inability to adapt. That’s just about every two years.”

If we only had “THIS” it would solve all our problems. If you do not think things through, “THIS” does nothing, it just leads to an Epic Fail and another round of seeking a new “THIS”.

Anonymous Anonymous Coward says:


Mike, great post. I think you might have missed a couple of links.

PBS ran an piece on this last night and Rick Cotton, executive president at NBC Universal and chair of the Chamber of Commerce Coalition Against Piracy was hyping the hyperbolic jobs thing again. Unfortunately Ben Huh, CEO of Cheezburger, did not go far enough in refuting this issue.

Also, unfortunately, Ray Suarez was woefully unprepared for the segment, and allowed this bogus rant to go unchallenged.

I look to PBS to give me balanced information (unlike FOX anything), and I have felt that they have in the past (20+ years of supporting PBS and NPR). For the first time, I actually know more about the issue than they do (thanks to Techdirt, I have a full cup of both sides). I am now VERY concerned that the Newshour is running off the cuff reporting instead of actually investigating the issues.

I did send them an email back on or about Jan 6 with regard to their Jan 5 report suggesting that the do some further research, with a link to one of your pages. Apparently they don’t listen.

jason says:

Re: Jobs

I saw the piece as well, but my opinion is more positive. I felt that Huh did a pretty good job, and came off as reasonable and well informed on the issues – passionate but not screechy. Cotton was as hyperbolic as ever (see the MSNBC segment) and relatively came out looking pretty bad.

Let’s face it, most people that watch the Newshour are probably older, less likely to be aware of these issues, and more likely to buy the kind of garbage that the **AA’s are selling. So I see this piece as exactly the sort of thing we need to get the issues out there to the wider public. I don’t think we need Ray Suarez to take one side or the other.

Anonymous Anonymous Coward says:

Re: Re: Jobs

I do not want Ray Suarez to take one side or the other either. I do want him, and others on PBS and NPR to recognize when one of their guests is tossing around lies that have been debunked by government agencies, amongst others. Letting those lies remain unchallenged is, in my opinion, irresponsible from the standpoint of traditional journalism.

My father was a journalist, and as I grew up, I watched him agonizing about being able to report as many sides to the story as possible. There were times when his life was in danger, due to his dedication to the truth. He covered the 1957 Little Rock schools issue, and was beaten by the crowd, and tossed in jail by the police (for his protection, they said), and still printed the reality, not the lies or (locally at least) status quo.

I expect a high standard from PBS/NPR, and have been seriously disappointed.

Anonymous Coward says:

The bill does require a half-hearted attempt to “contact” the operators of the sites being accused, but if the AG or rightsholders feel they can’t reach the owners, they can then go directly after “the site” itself (an “in rem” process, rather than an “in personam”).

Half-hearted? WTF Fudboy. The requirement for contacting the accused sites are the same as the standard applied to all federal civil litigation. So your problem seems to be with the Federal Rules of Civil Procedure not some “half-hearted” requirement unique to this bill that you have just invented.

Michael Ballantyne says:


I really don’t agree with Mike’s reading of “no significant use other than… enabling or facilitating” infringement in PIPA. To me that means that in order for a site to be considered dedicated to infringement the key functionality of the site would not only have to enable infringement but also have no significant other use. The bill doesn’t say that you’re dedicated to infringement if the only significant service you offer facilitates it ? rather, your service has to have no other use. I think it could be justifiably argued that, for example, the pirate bay has significant non-infringing use, in that it helps find torrents for non-infringing content such as linux ISOs, or legally free music.

I think I’m still overall against PIPA, due to the other arguments listed and because it appears that the government doesn’t really know enough about the internet to apply a law like this correctly even if the provisions were reasonable. But I think it is an overstatement to say that most sites on the internet would be properly understood as “dedicated to infringement” under just application of the bill.

Anonymous Coward says:

It seems appropriate to note that on this very day the Supreme Court issued its Golan v. Holder opinion (6-2), holding that Section 514 of the Uruguay Round Agreements Act does not exceed Congress?s authority under the Copy?right Clause.

I find it nothing short of remarkable that the Judiciary Committees of the House and Senate are able to craft legislation consistent with the US Constitution, something so many here seem to believe Congress is incapable of doing.

Anonymous Coward says:

Re: Here's an amendment for you...

That’s one of the most unhealthy aspects of both bills, there is not nearly enough penalty for abusing them (same for the DMCA). The *penalty* for abusing these procedures should outweigh the penalty for breaking them, I daresay, to ensure that someone or some corp. thinks long and hard before going legal.

Aside: these bills are proof of the lie that ACTA would not change US law.

Anonymous Coward says:

Re: Re: Here's an amendment for you...

Here’s an idea: how about to shut down a site that they say is a ‘rogue website’, they have to list exactly how much that site is ‘stealing’ or costing them money wise, and then put up a bond of say… 10 times that amount, plus enough to cover any legal fees. Should the case turn out to be bogus(or, lets be honest, a shakedown), and the site legitimate, the accused automatically receives the listed bond and money to pay their legal fees.

And for those that say that such a system would be unfair to those making the accusations, I’ll just say this: if they only target ACTUAL PIRATES/CRIMINALS, then they would have nothing at all to worry about. Therefore it’s only ‘unfair'(and I’m having to stretch the meaning of that word to the breaking point to fit it here) in the sense that they would have an actual penalty for attempting to destroy a legitimate website.

Anonymous Coward says:

Here's an amendment for you...

And I mean an AUTOMATIC liability, not a precedent that strengthens you’re case if you choose to countersue. I mean if bullies like the MPAA/RIAA want to roll the dice and take someone down, they do so at the risk of their own peril. Wrongly take down someone’s site and you automatically pay punitive damages.

shawnhcorey (profile) says:

Goodbye USA

With all the American sites protesting SOPA/PIPA, there are few which have figured out what they actually mean. If they get passed, then the US will be isolated from the rest of the internet. And for some strange reason, they think this will be a hardship for the rest of the world. Stop living in the 20th century. Since the crash of ’08, the rest of the world has been trying to make up its mind whether the US is that important anymore. And most are thinking it’s not. It would be ashamed if they were passed but if they are, say hello to backwater USA.

Andrew Stergiou (user link) says:



Can’t be too difficult if every acted with a minimum of effort?



I see an internet I want it painted BLACK
I WANT NO THE PROFILE PHOTOS In their cheerful tones

██ ████████ ██████ ██████████ ██ ████ ██ ████ ██████████ ██. ███ ███ This comment has been found in violation of H.R. 3261, S.O.P.A and has been removed.

Anonymous Coward says:

The “only impacts foreign sites” claim is also a red herring. It’s a favorite of the pro-PIPA/SOPA folks, but it’s a lie. While the current bill targets foreign sites, all of the remedies and enforcement require compliance by domestic sites.

Can someone please explain this in a bit more detail? As I understand the bills, the remedies would only impact payment processors and advertisers that are servicing foreign websites that are found to be dedicated to infringing activities (the DNS filtering seems to be out now, so its impact is moot). Mike has repeatedly stated that compliance would have a major impact on startups. I guess I’m just missing the connection.

I can certainly see how payment processors and advertisers might be impacted, but how (specifically) would the bills impose major compliance burdens on any other companies?

Thanks for the explanation in advance!

Thucydides (profile) says:

Another Purpose

One might wonder if there is another purpose of a bill that would force sites back to “narrow casting” i.e. no linking to
other sites with further information. This also means no re-
posting of copyrighted material. Money in politics is needed to pay for access to the narrow casters – broadcast tv and radio conglomerates along with the big name cable/satellite
news shows providers. If these were boycotted because of the
political ads (I’ll watch your deodorant commercials but not
your “candidate infomercials”) the money is useless. Social
media would then rule the political discourse and not Super-Pacs. Your actions would dislodge the supremacy of these companies to control our government. This is a real threat to an established order. You people participating on
this site and others really have that power – for now.


escort bayan (user link) says:


That is a standout amongst the most bad parts of both bills, there is not about enough punishment for misapplying them (same for the DMCA). The *penalty* for misusing these methods ought to exceed the punishment for breaking them, I daresay, to guarantee that somebody or some corp. takes some time to consider before going lawful.

Aside: these bills are verification of the lie that ACTA might not transform US law.

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