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How SOPA and PIPA could chill bloggers

After seeing buzz about the Stop Online Piracy Act and Prevent Internet Piracy Act House and Senate legislation circulating in Congress drafted as a means to prevent foreign entities from distributing pirated and copyrighted materials to Americans, I decided to take an independent review of the text of the proposed laws myself.

Because I own seven websites, including a gossip site, this poli-tech blog, and several other websites, I thought I ought to make sure the bills wouldn’t subject me to any liability.  A Twitter pal of mine also challenged me to read the bills and “not buy into the hype” over it.

Today, in protest over the bills Wikepedia, Google and other sites went black and offline, with some apparent success. Five Republican Senators decided to withdraw their support from the bills, perhaps after the awareness campaign prompted citizens to contact their representatives in Congress.

Chill to Capital Investment Recruiting

1. The law targets foreign sites which SOPA defines as “an Internet site that is not a domestic Internet site.”

Immediately, I thought of my proposed app and search for Angel funding for several digital projects I have in the pipeline. Should I be able to secure capital and have to surrender the majority ownership of my company in exchange for funding, at that point do I become a “foreign” site? And if we chose a foreign company to store our servers in the cloud, would that make my sites foreign too?  If one of the products in my blog  store happened to be an inspired copy of an existing brand or if I promoted work out mix tapes, would I be set to shut down? What about posts that include images from professional photographers that are unattributed. Would I be subject to their claims as well under this law? It is unclear from the language of the current version of SOPA as written and perhaps some clarification is needed. Enterprising bloggers, Gossip sites and start ups could be the unintended victims of this law.

Advertiser Liability

2. Also, there is a section, 102 (c)(2), of SOPA which imposes liability on advertisers for promoting such foreign sites that market pirated content to Americans. It reads:

(D) INTERNET ADVERTISING SERVICES- (i) REQUIRED ACTIONS- An Internet advertising service that contracts to provide advertising to or for the foreign infringing site, or portion thereof, that is subject to the order, or that knowingly serves advertising to or for such site or such portion thereof, shall take technically feasible and reasonable measures, as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order

I control two websites that has contracted various advertising networks to push various ads to them.  It’s a way for the sites to fund themselves. I have no control over which ads via those networks are posted on the blogs.  Therefore, there is no way for me to know if a foreign company that sells pirated wares is on my blog advertising products to my American visitors.  At that point, if that is the case, I become a third party advertiser and could potentially be on the hook for policing those ads.  There are several hundreds that appear 24 hours a day, 365 days of the year and it would be impossible for me to monitor them all.

The law also does not clarify that I would be indemnified.

However, under the law, as written, I could be listed among other defendants in a suit by a claimant and my site yanked.

The net effect of the law for an average blogger and digital entrepreneur seeking capital could be chilling. It would stifle my ability to make money off my site and potentially subject me to the costs of having to defend frivilous law suits.

Further, because the law empowers the millions of copyright owners around, there is nothing stoping them from filing thousands of suits, whether based on facts or not and flooding the court system.

Protection to Defenders

One thing that is good about SOPA however is that it permits defenders who are incapable of complying with the rule without incurring significant cost. Section 102(c)(2)(D) states:

(C) DEFENSE- A defendant in an action under subparagraph (A)(i) may establish an affirmative defense by showing that the defendant does not have the technical means to comply with this subsection without incurring an unreasonable economic burden, or that the order is not authorized by this subsection.

That is a saving grace, however, it is still an unnecessary burden. The time and cost to defend a complaint could be burdensome on small businesses and individuals.

The concern is not even so much as whether the law clearly includes, exempts or precludes enterprising bloggers from its jurisdiction, but more so whether its ambiguity would chill speech, slow down innovation and encourage frivolous suits.

Possible Solution

An alternative to broad legislation that has chilling effect and could possibly unravel and dismantle the Internet as we know it would be for lawmakers to take a more insular and granular approach.  Like the mafia and other illegal rings, many times there is a hub and spoke to a wheel method of distribution in an identifiable network.

Lawmakers ought to determine the sources of the piracy, how it is done and then fine tune an approach to maximize actual lawbreakers’ getting caught in the net and not innocent independent fish just trying to stay afloat and swim and certainly not sink in the vast pool of a otherwise competitive, vibrant and working Internet ecosystem.

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