Law professors explain what's wrong with SOPA, constitutionally speaking

James sez, "The Stanford Law Review Online has just published a piece by Professors Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don't Break the Internet, they argue that the two bills -- intended to counter online copyright and trademark infringement -- 'share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet's addressing system, for the principle of interconnectivity that has helped drive the Internet's extraordinary growth, and for free expression.'

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country's tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.

Don't Break the Internet (Thanks, James!)


  1. You mean government should actually adhere to the Constitution?
    Wouldn’t that be a first? How much of government’s activity currently falls within the bounds of the Constitution?

  2. The US Constitution applies to anyone on US soil and to US citizens no matter where they are.

    The US Constitution doesn’t apply to the global Internet and to the “free speech” of anyone who is not either of the above.

    “a right to insist on the removal of content from the global Internet”

    Yeah, right. This is where the often heard “The US does not own the Internet” backfires on the free-speech* advocates. SOPA requires US-based DNS and search providers to de-list infringing sites. It doesn’t require a foreign host to shut them down, or any non-US DNS to comply with anything. If I switch to a non-US DNS server or search engine, the sites are still there.

    I see where these laws are coming from, and why they won’t work: They are an attempt to stop infringing electronic goods from crossing US borders, much like customs tries to stop physical goods, by attempting to deny access to the source of the infringing goods. The physical world has a limited number of ways you can move things, all requiring time and effort.  The Internet is a game of whack-a-mole you just can’t win.

    * As far as I can tell these laws are meant to remove sites hawking knock-off handbags and “pirated” stuff (which is probably just malware) Show me where IP laws are be used against _actual_ free speech, as in the ‘critical of the government” variety, and I’ll show you a supreme court case waiting to happen.

    1. Dude, this is just naive.  The DMCA, with it’s *much* milder provisions, has already been used *repeatedly* as a tool of censorship against completely legal speech by major corporations. And the courts are *not* a remedy. (Who’s so rich in both money and time that they can afford a court case to get their blog page back? Knowing in advance that there will be no penalty for those who fraudulently took it down, because the law doesn’t provide one?)

      Anti-government speech isn’t in nearly as much danger as anti-Sony, or anti-Disney speech, not to mention not-anti-anything-just-on-the-wrong-webpage-when-they-killed-the-site speech.

      (I still find it hard to accept that things are now so bad I just described the DMCA as ‘milder’.)

      1. Right there with you Tynam… While the DMCA is messy legislation at best, it isn’t nearly as potentially damaging as SOPA could become. I’m less concerned about anti-government speech and more about anti-big-business speech. Money can do a lot of things… such as make the “wrong” things seem “right”.

        1. Any big org, be it government or corporation, holds a whole lot of power. It is long past the point where one can think one dangerous and the other benign.

  3. It’s good to hear some of the elite in the legal community voice their concerns. SOPA and the proposed changes to Net Neutrality would vastly degrade the quality of innovation in this country; serendipitous success stories such as Facebook and Google will be a thing of the past. Should certain politicians have their way, big business need only cry ‘foul’ and their competition would be buried in legal fees and, in many cases, forced to close down. While the intent may be to protect consumers against knock-off merchandise, it is more likely that a large company with deep pockets will use these tools as a cost of doing business to destroy their competition.

    1. It’s good to hear some of the elite in the legal community voice their concerns.

      Unfortunately in D.C. words like “elite” and “legal community” are used as epithets for undermining one’s political opposition these days.

    2. I think it should be emphasized that SOPA really sucks at effectively enforcing copyright. However it’s pretty good at creating a more policed, more self-censored net. The Chomsky reader in me tells me that this is about control.

      If you’re interested here’s a very short piece of dystopian fiction I put together, which puts you in the shoes of a cynical policy maker:

      1. Or it could just be a whole lotta incompetence by people who don’t know what the hell they’re doing. The MPAA has long worked against its own long-term interests in vain attempts to enforce copyright—just look up former MPAA President Jack Valenti’s 1982 attempt to persuade Congress that VCRs would kill the movie industry if Americans were allowed to have them. (Surprise surprise, they ended up making the studios untold billions by spurring home video sales.)

  4. I thought there was a state of emergency and the “constitution” is suspended?

    Government can do whatever it’s paid to do.

  5. Constitutionality aside, for SOPA to work the way I’ve seen described, all traffic into and out of all locations governed by the U.S. Constitution would have to be scanned and filtered deep enough to block all traffic to or from blacklisted sites.  Additionally, provisions in the bill would require allegedly intellectual property violating content to be blocked or scrubbed from the transfer.

    I see both of the scenarios described above as extremely problematic even if they are technologically possible. I work for a company with offices around the globe and such an implementation would be potentially damaging to legitimate corporate internal communications and harmful to business.

  6. One of the primary problems in America’s current political landscape is the unwillingness of Government officials (elected or otherwise) to admit they don’t have jurisdiction. 

    Chief among the remedies for this kind of nonsense is the immediate repeal of the 17th amendment to restore state representation in the Federal Government.   Other Constitutional remedies should include:  

    1. The President of the United States, under the doctrine of the Separation of Powers, should be prohibited from lobbying Congress apart from the annual State of the Union address.

    2. Under Article I, no person other than an elected member of the House or an appointed member of the Senate should be allowed to write legislation.  Further, Article I Section 7 should be amended to give exclusive authority for writing spending bills to the House.

    3. Under the doctrine of the Separation of Powers, conference committees should be banned.  (The House and Senate were never intended to collude.   They are adversaries.)

    4. The states should immediately pressure Congress to amend the Constitution to alter Article V and provide the states with the power to unilaterally (upon application of at least two thirds of their number) call an Article V convention to propose amendments. 

    5.  All Federal legislation should be required to cite the Constitutional authority under which it is enforceable.  

    6. All members of Congress, the Supreme Court and the Executive Branch (including all appointed members of the Cabinet) should be required to serve under Oath while in office. 

    7. The Constitution should be amended to prohibit election to any Federal office more than once.   Appointments to the Bench should also be limited to ten years.

    8.  All laws should sunset after five years unless sustained by an identical act of Congress after an election has intervened.

    That would be a good start towards putting a stop to the expansionist Federal Government that writes laws like SOPA and restoring America to the Republic it once was.

      1. If an Article V convention were convened, it would at least guarantee some number of politicians would be reading the Constitution for the first time.

        1. Pfft! All they need to know is the commerce clause. That’s the foundation for most of their regulation. Everything else is just annoying chaff.

        2. We could finally get rid of the bill of rights, and restore the god given theocracy we were meant to have.

    1. Chief among the remedies for this kind of nonsense is the immediate repeal of the 17th amendment to restore state representation in the Federal Government.   Other Constitutional remedies should include:  

      But Senatorial elections are more competitive than elections to the House. (We must remember that the very state governments that appoint Senators under a pre-17th amendment scheme are in charge of gerrymandering House districts.)

      There is some irony in pulling out the States Rights card to oppose a copyright bill– before the 1976 Copyright Act, the states had their own, additional copyright regimes, some of which still complicate the use of sound and music recordings. 

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