At the Top of Congress’ New Year Agenda? Regulate the Net

by on January 9, 2012 · 2 comments

Over at TIME.com, [I recap](http://techland.time.com/2012/01/09/at-the-top-of-congresss-new-year-agenda-regulate-the-net/) the latest on SOPA and PIPA and look at what’s ahead once Congress reconvenes. I also address the argument that the piracy bills don’t amount to censorship since they’re aimed at unprotected speech.

>Both bills would likely affect non-infringing speech because they allow for entire sites to be blocked — even if they also include otherwise legal speech. Yet the Supreme Court has ruled, “Broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” And you can add to that a troubling lack of due process that’s a recipe for abuse.

Read [the whole thing here](http://techland.time.com/2012/01/09/at-the-top-of-congresss-new-year-agenda-regulate-the-net/).

  • Thomas D. Sydnor II

    Jerry, you are fretting about a problem that could be called “entangled speech.” It could be said to occur whenever any foreign criminal or infringer of the federal civil rights of American citizens chooses to intermingle his or her potentially lawful speech with his or her blatantly unlawful acts in a way that makes it kinda difficult to “disentangle” the two. You propose that when foreign criminals choose to violate US laws and international norms in order to harm Americans in America while entangling lawful speech and unlawful acts, it is more important to protect the federal civil rights of the foreign criminals who created the entanglement problem than the federal civil rights of the Americans whose rights under federal law and the Universal Convention on Human Rights were being deliberately violated. For the following reasons, your deep concern for the speech rights of operators of foreign racketeering enterprises—while touching—seems rather overblown.
    First, remember that counterfeiting often creates threats to public health and safety, as have many forms of Internet piracy. For example, operators of no-prescription Internet pharmacies that dispense addictive prescription drugs without valid prescriptions have actually been convicted of manslaughter in the deaths of minors. Indeed, that is why those currently operating such rogue pharmacies are based overseas. But I presume that every no-prescription, foreign-rogue-pharmacy dedicated to illegally targeting the U.S. market with illegal, adulterated, misbranded and/or counterfeit addictive narcotics has some lawful speech on its website. Are you suggesting that it would thus be unconstitutional to block these criminal racketeering enterprises from using the Internet to target the U.S. market? I don’t.
    Second, you seem to mistake the First Amendment for a visa or a passport. It is neither: the fact that someone wants to make a lawful speech has never given them any legal right to enter or do business in the United States. Consequently, First Amendment concerns should recede when we are dealing with members of the Russian mafia who are lurking in corrupt foreign jurisdictions and crying “First Amendment!” whenever the U.S. government tries to prevent them from profiting from crime by using the Internet to do business in America by violating the federal civil rights of Americans.
    Third, remember, that if original thoughts or deeds were common among pirates and counterfeiters, then they probably would have pursued non-socially-destructive lines of business. Consequently, you should not imagine that the trick of entangling potentially lawful speech with illegal counterfeiting or piracy was some brilliant scheme first devised by the operators of The Pirate Bay. It wasn’t.
    Actually, “entangled-speech-and-piracy” is one of the oldest tricks in the pirate book. Consequently, as of last summer, no one in the Western Hemisphere had taken it seriously for over a century. Copyright infringers were the first to adopt the “entangled speech” trick by claiming that they could make unauthorized copies of the works of others so long as they appended some lawful original commentary to them. That practice was proscribed by America’s very first multinational copyright treaty—the Buenos Aries Convention of 1910. Pirates and counterfeiters who entangle lawful speech with illegal or criminal counterfeiting or piracy were thus old news in 1912—much less 2012.
    Similarly, the “problem” of entangled speech could also occur back in the pre-Internet days when foreign pirates or counterfeiters lurking in lawless foreign states had to rely on shipping containers when they wanted to target their piracy or counterfeiting towards the US domestic market. Back then, we relied upon administrative customs seizures to protect our borders and the IP rights of our citizens by impounding incoming shipments of counterfeit or infringing goods. Are you honestly suggesting that all international counterfeiters or pirates had to do to make U.S. customs seizures unconstitutional restraints on their right to “free speech” was to entangle some lawful speech with their unlawful goods—stuff some political flyers into the fake handbags, stick some original art on the falsely UL-certified fire extinguishers and append some original “commentary” to the end of the pirate DVDs? Really?
    If you are prepared to make such arguments publicly, then you must take the old “entangle-your-speech-and-crimes” trick far more seriously than actual international counterfeiters and copyright pirates. If you are not prepared to make such ridiculous arguments, then tell me: Why do entangled-speech arguments become materially less ridiculous when counterfeiters and pirates start choosing websites, rather than shipping containers, as their means to target the U.S. market with illegal counterfeiting and piracy? Why could the data encoded in an imported packet differ materially from the same data encoded in the tiny pits of commentary-enhanced pirate DVDs in an imported shipping container? Do not the miscreants creating such “entanglement” problems still remain, as they always were, the parties best situated to minimize the extent to which their illegal businesses might interfere with their incidental but potentially lawful speech?  In such a case, aren’t the foreign counterfeiters and pirates what economists would call the “least-cost avoiders” of any costs arising from their own decisions to entangle lawful speech with unlawful acts?
    Finally, the above notwithstanding, I do agree that if it is possible for US intermediaries to easily block, remove links to, or refuse to do business with, only those portions of a site or domain that are dedicated to piracy or counterfeiting, then rogue-website legislation should make it clear that they should be able to do so. Shouldn’t that resolve any valid concerns about “entangled speech” and rogue-website legislation? If not, how would you propose to resolve “entangled-speech-piracy-and-counterfeiting” problems in a way that would be fair to both the Americans whose federal civil rights were being deliberately violated and the foreign counterfeiters or pirates who choose to both target the U.S. market and create the entanglement problems now chafing the delicate legal sensibilities of some academes?
    –Tom Sydnor

  • Ryan Radia

    I’m not worried about SOPA/PIPA silencing bad actors who entangle copyright/trademark infringing activities with lawful speech merely as a pretext for asserting First Amendment defenses. My concern is that SOPA, and to lesser extent PIPA, plainly encompass websites whose owners have no intent to violate intellectual property laws.

    Imagine I am a Swiss national of modest means who launches a website based in my home country to host a forum for rap music aficionados to discuss the music they love. Upon launching my website, I properly inform the U.S. Copyright Office of my service provider agent for receiving DMCA takedown notifications, and I comply with all provisions of 17 U.S.C. § 512. Yet after a few years of operation, I receive service of process via email that the U.S. Attorney General has commenced an action pursuant to SOPA. I consult with local counsel, who goes on to contact a multinational litigation firm. I am informed that a US $10,000 retainer is necessary to defend my website in the U.S. District Court for the Southern District of New York. 

    In its complaint against my site, the Attorney General accurately claims that my site is hosting over one thousand links to copyright infringing rap music videos on cyber-locker sites. Citing 18 U.S.C. § 2323, the AG asserts that my site is subject to seizure since it is being used to facilitate acts of criminal copyright infringement. A handful of my site’s users (identified by usernames) have each posted links to dozens of infringing videos. Although my site features a huge number of discussions centered around lawful, non-infringing content, when I begin to go through all of my sub-forums, I realize that illicit content is not as rare as I thought, and is sufficiently intermingled with lawful discussions such that I cannot readily ascertain the prevalence of infringing activities.   

    While I had no actual or constructive knowledge of these infringing links, I’ve received (and complied with) hundreds of DMCA notifications over the past few years, so I have generalized knowledge that some of my site’s users are engaged in illicit activities. Of course, I maintain a repeat infringer termination policy, but I do not engage in IP address-level blocking because I worry about students behind a NAT. Thus, I cannot rule out the possibility that users terminated for infringement have signed up new accounts under different email addresses. 

    Given that my income is modest, and my local counsel has told me (in consultation with the multinational IP litigation firm) that defending the lawsuit could well end up costing me upwards of US$50,000, I decide not to show up in court. I decide that, even though my site is used by tens of thousands of users — including U.S. users — to engage in lawful discussions about the socioeconomic meaning of popular rap songs, I cannot afford the burden of litigation. I do not show up, causing the court to enter a default judgment against my site in accordance with Fed.R.Civ.P. 55, taking as true all facts asserted in the Attorney General’s very well-pleaded complaint. (A consequence of the entry of a default judgment is that “the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.” 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure, § 2688 at 444 (2d ed. 1983) (citing Thomson v. Wooster, 114 U.S. 104, 5 S.Ct. 788, 29 L.Ed. 105 (1885)).

    My site loses access to U.S. advertisers, and many of my top users can no longer access the site from their U.S.-based ISP. Although my lawyer tells me I can crack down on infringement and petition the court to vacate the SOPA injunction, I lack the time to go through my site for infringing content, and I can’t afford to pay the lawyers to petition the court. My website lacks subdomains, so the advertisers and DNS servers can’t target their action to the infringing portion of my site. Ultimately, my revenue stream drops off, and I shut down the site because I can’t pay the server bills.

    That is what a First Amendment violation looks like. 

    If you think this hypothetical is implausible, and that prosecutorial discretion renders it unlikely, how do you explain the Dajaz1 seizure? http://www.techdirt.com/articles/20111208/08225217010/breaking-news-feds-falsely-censor-popular-blog-over-year-deny-all-due-process-hide-all-details.shtml

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