Will Congress Break the Internet?

By Bob Zeidman
February 8, 2012

A frenzy of protest activity was recently unleashed and directed at two bills that sought to prevent online piracy of copyrighted materials. These two bills being considered by Congress would have assisted intellectual property owners who so frequently have their rights infringed online. The PROTECT-IP Act (PIPA) was the Senate version of the bill; The Stop Online Piracy ACT (SOPA) was its counterpart in the House of Representatives. Protests led to many leaders withdrawing support and the bills were scrapped. Further consideration of the issues is, however, ongoing in alternative forms so it is likely useful to substantively address some of the key criticisms of PIPA and SOPA, which are virtually certain to resurface.

The essence of the bills was to enable U.S. law enforcement or a private party to shut down websites that are “dedicated to infringing activities.” Such websites are defined in the bills as those whose primary purpose is infringement.The accuser must show that the website has “no significant use” other than engaging in, facilitating, or enabling any of the following:

  1. Copyright infringement; or
  2. Infringement or violation of any of the protections contained in the DMCA (Digital Millennium Copyright Act) including its anti-circumvention provisions; or
  3. The sale or promotion of counterfeit goods.

The shutdown of the website is effected by disabling DNS translation. When a user types in a URL such as “www.ZeidmanConsulting.com”, the network devices that implement the Domain Name System (DNS) throughout the Internet, called “DNS servers,” translate the characters into an Internet Protocol (IP) address consisting of numbers such as 205.134.253.65.

Attorneys Mark Lemley, David S. Levine, and David G. Post wrote a recent article for the Stanford Law Review entitled Don’t Break the Internet. I’d like to address each of their main points.

The Bills Will Not Harm Internet Infrastructure

These authors claim that “the bills represent an unprecedented, legally sanctioned assault on the Internet’s critical technical infrastructure.” The authors go on to say that implementing such filtering “threatens the fundamental principle of interconnectivity” and “will also have potentially catastrophic consequences.” This is not true. Every time you register a new domain, the DNS servers throughout the Internet are updated with the translation. Every time a domain name expires, the DNS servers are again updated to remove the translation. According to a report by VeriSign, there were 4.9 million new domain name registrations in the third quarter of 2011. That’s about 37 DNS changes per minute on average, not counting changes due to expired domains. From a technical point of view, the bills do nothing different than what happens many times each day on the Internet and has no technical challenges or risks.

The Bills Do Not Violate Basic Principles of Due Process

The authors state that these acts “violate basic principles of due process… by depriving persons of property without a fair hearing and a reasonable opportunity to be heard.” These bills, as with all similar bills, require a court to make a decision to take action or not. As an expert witness I know that no judge takes such a decision lightly and that there are high thresholds of proof. Without this kind of ability to shut down illegal activity, accused criminals would simply avoid showing up for court in order to evade punishment.

The Bills Do Not Violate Free Speech Rights

The authors state that each bill is an “unconstitutional abridgement of the freedom of speech protected by the First Amendment” and that “[t]he Constitution requires a court ‘to make a final determination’ that the material in question is unlawful ‘after an adversary hearing before the material is completely removed from circulation.'” In other words, you cannot take down a website until you allow the accused to appear in court to defend himself. This quote is taken from the decision in the case of Center for Democracy & Technology v. Pappert. The authors have misquoted the decision, which reads a “publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing” (emphasis added). This case is about the conflict between free speech rights and an accusation of child pornography, not about free speech rights and copyrights, but a case about free speech and copyrights on the web already has a precedent. Years ago the Digital Millennium Copyright Act (DMCA) was similarly challenged in federal court and survived. The decision in U.S. v. Elcom confirmed that restrictions in the DMCA were not a violation of due process and did not conflict with the First Amendment.

The Bills Would Not Turn the U.S. into a Repressive Regime

The authors’ final point is made with this statement:

It would be not just ironic, but tragic, were the United States to join the ranks of… repressive and restrictive regimes, erecting our own “virtual walls” to prevent people from accessing portions of the world’s networks.

Repressive regimes are actually those that do not protect individual property rights, but rather allow the government to determine who owns what, or conversely allows property theft to go unpunished. Repressive regimes do not have the court system and the legal system of the United States that strict procedures and requirements to be met. There is no realistic concern that this law will turn the U.S. into a repressive regime.

A Very Real Problem

In their conclusion I find surprising agreement with the authors. They state:

Copyright and trademark infringement on the Internet is a very real problem, and reasonable proposals to augment the ample array of enforcement powers already at the disposal of IP rights holders and law enforcement officials may serve the public interest. But the power to break the Internet shouldn’t be among them.

Here they are correct. We must find reasonable ways to stop infringement of intellectual property on the Internet. Such a solution must be fair to the victim of the infringement. It must uphold the principles of the Constitution of the United States. And it must not break the Internet. SOPA and PIPA may not be perfect implementations of such protection, but they meet all of these requirements. There may be better strategies that can be reached through measured and thoughtful debate, but not through excessive hyperbole and misrepresentation.

For more on this topic take a look at the summary of the bills provided by the law firm of LaRiviere, Grubman & Payne.

The Author

Bob Zeidman

Bob Zeidman is one of the leading experts on intellectual property, particularly as it relates to software. He is the president and founder of Zeidman Consulting, a premier contract research and development firm in Silicon Valley that focuses on engineering consulting to law firms about intellectual property disputes. Clients have included Apple Computer, Cisco Systems, Facebook, Intel, Symantec, Texas Instruments, and Zynga. Bob is also the president and founder of Software Analysis and Forensic Engineering Corporation, the leading provider of software intellectual property analysis tools for use in forensic examinations. Bob is considered a pioneer in the fields of analyzing and synthesizing software source code. He has worked on and testified in over 150 cases involving billions of dollars in disputed IP.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 6 Comments comments.

  1. Steve February 8, 2012 12:25 pm

    One of the understated concerns surrounding SOPA was that content holders had no “skin in the game” in the event that they filed a flagrantly abusive takedown.

    If there’s a private right of action, it needs some fee shifting provision similar to 505.

  2. Gene Quinn February 8, 2012 1:59 pm

    Steve-

    Do you mean fee shifting in the event that there is a flagrant abuse by a copyright owner? That sounds reasonable.

    What about fee shifting so those who flagrantly infringe pay the attorneys fees for the content owners? Not that content owners could typically collect because the folks who flagrantly infringe usually have little or nothing, but paying for the actions required by those who do flagrantly infringe would seem like an appropriate punishment, even if it is financially ruinous for some.

    -Gene

  3. MPG February 9, 2012 12:27 pm

    First and foremost, this was a thoughtful article. Kudos to Mr. Zeidman for actually reading the legislation and not merely the hyperbolic rhetoric of many of the stakeholders.

    As for the comment above, I have no objection to fee shifting if there is flagrant abuse by the rights owner, but it is not accurate to say that the rights holder did not have any “skin in the game”. Even in SOPA as originally introduced, the bill actually created more, not fewer, DMCA protections, requiring a DMCA-like notification/counter-notification regime before a rights holder can seek an injunction against the rogue site. (Of course, this part was removed in the manager’s amendment because of opponents’ objections.) The House bill ensured that 3rd parties were not overly burdened to comply with an order by stipulating that the party is not required to take action beyond what is technically feasible and reasonable. Really, the bill merely gave rights holders a legal process whereby they can assemble data and information regarding instances where their property is being stolen, present this to a US court, and seek injunctive relief. Moreover, there were no financial damage awards with this process – only very target injunctive relief. This would be very unlikely to fuel excess litigation like in certain malpractice areas b/c generally, overly-litigious stakeholders and lawyers seek huge financial rewards, not targeted injunctions. Finally, and importantly, there were significant penalties for those who misrepresent charges that an Internet site is illegal, thus there was a high price to pay if one is trying to tie up in litigation a company that is actually complying with the law.

  4. JJones February 9, 2012 2:54 pm

    Great work here. Additionally, I think it is fair to point out that “meddling” with the Internet’s Domain Name System is not an unprecedented practice as critics of these legislative efforts have often suggested. To the contrary, the type of DNS filtering contemplated in the bill is a popular approach that some DNS service providers already use to protect their subscribers from websites known to be the origin of phishing attacks and other malicious activity. In addition, for the last few years many large ISPs have offered “DNS Helper” or “DNS Assist” services that deliver search results when a user tries to access a domain name that does not exist. Many of the same critics of filtering rogue sites today argued that those services would trigger a mass exodus of users from their ISP’s DNS services and break the Internet. It simply did not happen.

  5. Summer February 9, 2012 6:05 pm

    The author is right. SOPA and PIPA are designed to protect creativity and expression of American artists. They aim to stop these rouge sites, whose sole purpose is to illegally distribute infringed upon content, from stealing American ideas and products. Our legal system and economy both are built on rule of law and property rights – both of these bills reinforce those principles.