The matter before us today is enormously important. H.R. 3261, the Stop Online Piracy Act, would reshape our country’s legal framework for online innovation and commerce, and perhaps the technical structure of the global Internet as well.
Unfortunately, the panel of witnesses convened for this hearing is severely inadequate. Civil libertarians and law professors have said this bill is inconsistent with the First Amendment to the United States Constitution. Network engineers and security experts have said that the bill could imperil cybersecurity and the technical infrastructure of the Internet. Consumer groups have expressed worries that the bill could raise the prices we pay for goods online. Human rights advocates have said that the bill could legitimize Internet censorship by repressive regimes around the world. Libraries and educational institutions have expressed concern that they could face new criminal and civil liability for innocent conduct. Venture capitalists and technology entrepreneurs have said that H.R. 3261 could stifle investment in legitimate Internet businesses and online services.
None of these voices are represented at our hearing today. Members will not have the opportunity to explore any of these concerns in detail. In their place, a single Internet company—Google—was invited to testify, on a panel with five other witnesses testifying in defense of H.R. 3261.
Infringing material exists on the Internet. Some websites exist that flagrantly violate copyright and trademark law. The question is what to do about it. No one should conflate opposition to this legislation with a disregard for the protection of intellectual property. Yet this is precisely what many of this bill’s proponents are doing, in an attempt to discredit substantive criticisms.
H.R. 3261 is deeply flawed in many ways. I will highlight just a few:
• Section 102 creates an open-ended technical mandate on Internet service providers (ISPs) to block their users from accessing blacklisted websites. Unlike S. 968, the PROTECT IP Act, this mandate is not limited to domain filtering. Instead, the government may apply for a court order to impose any filtering measure upon ISPs, so long as it is deemed “technically feasible and reasonable.” Does this include the blocking Internet Protocol addresses? Deep packet inspection? New filtering technologies as they are invented? The bill does not say.
• Section 103 overturns critical safeguards in the Digital Millennium Copyright Act for cloud computing and any website that provides a platform for user-generated content. This includes everything from photo and video sharing to social networking, blogging, and beyond. Under Section 103, such websites will face a new legal risk that they will be terminated by their payment and advertising providers, based on an accusation that they are dedicated “to the theft of U.S. property.” This charge could be based upon infringement committed by a website’s users, and the DMCA safe harbor in 17 U.S.C. 512(c) cannot be used as a defense.
• Section 103 also allows a “portion of” a website to be deemed “dedicated to the theft of U.S. property,” regardless of the culpability of the website as a whole. Like many important terms throughout H.R. 3261, the precise meaning of these words is ambiguous, and will require years of expensive litigation to clarify. However, the plain meaning of the words seems to indicate that any large website could face a risk of termination by payment and advertising providers based solely upon infringing material contained in a single web page.
• Under Section 103, any website, foreign or domestic, can be declared “dedicated to theft of U.S. property” if it takes “deliberate actions to avoid confirming a high probability of the use” of the site to carry out infringement. This appears to create a new basis for infringement liability in U.S. copyright law, which will take years and perhaps decades of difficult litigation to sort out. It also may impose a duty upon websites to monitor all user-generated content on their sites, in order to guard against a risk that their failure to do so would be construed as an act of “willful blindness.” For many legitimate websites, active monitoring is simply not feasible, given the enormous volume of content uploaded by their users during every hour of the day.
Let me also add that the domain filtering scheme envisioned by H.R. 3261 will not be effective. Anyone determined to reach a blocked site may do so easily, merely by typing in the website’s IP address into the navigation of their browser bar, instead of the site’s domain name. Any ten year old could do it. Under this bill, the United States would construct an unprecedented Internet filtering scheme to block foreign websites. This is likely to have major costs and unintended consequences, while doing little to achieve the laudable goal of reducing online piracy.
I agree with the goal of fighting online copyright infringement. Narrowly targeted legislation that does not ensnare legitimate websites or undermine the Internet’s technical and security infrastructure should be pursued. In particular, I believe that new remedies could deprive criminal websites of the revenues that motivate and enable their very existence, without doing unnecessary collateral damage. I also believe that a consensus on this issue between the content and technology industries is achievable. Unfortunately, H.R. 3261 is a draconian and one-sided approach that pushes us much farther away from such a consensus, instead of building towards it.
Zoe Lofgren
U.S. Member of Congress
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