Constitutional Scholars Explain Why SOPA & PROTECT IP Do Not Pass First Amendment Scrutiny
from the good-for-them dept
We had already mentioned that one of the foremost Constitutional scholars around, Laurence Tribe, had come out against Congress's attempts to modify copyright law through SOPA. Some complained that he didn't get into specifics. However, he's now sent a letter detailing the problems in the bill (pdf) and why it violates the First Amendment. There are many, many reasons, with lots of details and citations, but here's just an example:The notice-and-termination procedure of Section 103(a) runs afoul of the �prior restraint� doctrine, because it delegates to a private party the power to suppress speech without prior notice and a judicial hearing. This provision of the bill would give complaining parties the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice accusing the site of being �dedicated to theft of U.S. property� � even if no court has actually found any infringement. The immunity provisions in the bill create an overwhelming incentive for advertisers and payment processors to comply with such a request immediately upon receipt. The Supreme Court has made clear that �only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression [and] only a procedure requiring a judicial determination suffices to impose a valid final restraint.� Freedman v. Maryland, 380 U.S. 51, 58 (1965). �[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.� Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976).Tribe also points out the deficiencies in his "friend" Floyd Abrams' analysis of the First Amendment issues here:
However, I part company with Mr. Abrams on this issue. I believe his letter provides an excellent explanation of why existing law, including the Digital Millennium Copyright Act, is on the whole consistent with the First Amendment, but I do not believe his letter adequately analyzes or even meaningfully confronts the sweeping changes that SOPA would enact. Indeed, Mr. Abrams ultimately acknowledges that the remedies under SOPA may result in �the blockage of non-infringing or protected content.� (Letter of Nov. 7, 2011 from Floyd Abrams to Hon. Lamar Smith, at 12 (emphasis added).) He acknowledges that seizure powers under the copyright law must be exercised with �due regard to First Amendment considerations� (p. 4) and that �[t]he Internet is one of the greatest tools of freedom in the history of the world.� (p. 2) He also recognizes that �[i]t is a fundamental principle of First Amendment jurisprudence that government restrictions on speech should be narrowly tailored to avoid unnecessarily burdening protected speech.� (p. 10).Later, as he dives into even more detail, he explains why Abrams' analysis totally misses the mark:
These concessions go to the heart of the constitutional defect evident on the face of SOPA. Although the problems of online copyright and trademark infringement are genuine, SOPA is an extreme measure that is not narrowly tailored to governmental interests. It is a blunderbuss rather than a properly limited response, and its stiff penalties would significantly endanger legitimate websites and services. Its constitutional defects are not marginal ones that could readily be trimmed in the process of applying and enforcing it in particular cases. Rather, its very existence would dramatically chill protected speech by undermining the openness and free exchange of information at the heart of the Internet. It should not be enacted by Congress.
Mr. Abrams stresses �[t]he Supreme Court�s most detailed treatment of the interrelationship between the First Amendment and copyright, the seminal case of Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).� (p. 3). Yet the Harper & Row case involved a traditional, time-honored copyright principle � the �fair use� doctrine � not a radical departure from the familiar contours of copyright law like the provisions of SOPA. Harper & Row did not hold that any kind of revolutionary, speech-suppressing statute would be constitutional, so long it was wrapped in the mantle of copyright law. In fact, in a subsequent case, the Supreme Court made clear that copyright statutes are not �categorically immune� from First Amendment scrutiny and explained that the approach of Harper & Row applied only �when . . . Congress has not altered the traditional contours of copyright protection.� Eldred v. Ashcroft, 537 U.S. 186, 221 (2003). Whatever else may be said of SOPA, it certainly �alters� those contours.Along with his letter, there was another letter sent by internet law scholar Marvin Ammori, who notes that his letter (pdf) has some overlap with Tribe's, but also digs into some other issues around the First Amendment and why both PROTECT IP and SOPA don't survive First Amendment scrutiny.
The fact that SOPA�s purpose is the protection of intellectual property rights does not change the constitutional calculus. Benign motives do not shield legislation from First Amendment scrutiny, nor is �[i]llicit legislative intent . . . the sine qua non of a violation of the First Amendment.� Minneapolis Star & Tribune Co. v. Minnesota Comm�r of Revenue, 460 U.S. 575, 592 (1983). The Supreme Court has �long recognized that even regulations aimed at proper governmental concerns can restrict unduly the exercise of rights protected by the First Amendment.� Id. at 592; see also Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 117 (1991) (striking down law despite absence of evidence that �the legislature intends to suppress certain ideas�); Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 228 (1987) (speaker need adduce �no evidence of an improper censorial motive� in order to invalidate law).
these bills target considerable speech by speakers who are engaging in no direct or indirect infringement, from websites "enabling" infringement to advertisers engaged in truthful, non-infringing commercial speech and search engines delivering results. Because these bills restrict considerable protected non-infringing speech, several different doctrines would trigger standard First Amendment scrutiny . These doctrines include the Supreme Court's doctrines of overbreadth, vagueness, and prior restraint, as well as its decisions in United States v. Stevens and Eldred v. Ashcroft. Standard First Amendment scrutiny, not any standard applicable to copyright infringement, would logically apply for restrictions on non-infringing, protected speech by search engines, domain name providers, and advertisers. Under standard First Amendment scrutiny, both PROTECT IP and SOPA are clearly unconstitutional in restricting these categories of protected speech.How much longer will supporters of these bills continue to trot out just Floyd Abrams, as if he's the only voice on the matter?
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: first amendment, free speech
Reader Comments
Subscribe: RSS
View by: Time | Thread
He is the only voice on the matter, for their side.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
SOPA/PIPA is a disgrace to our lives and to the laws of our Land.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
We're all sharing just as hard as we can but it's the way were doing it that is the problem.
Now we all know how much our politicians love a
good war but no one in the tech community wants to declare that we are at war.
So allow me to be the first and declare war on the entertainment industry!
There...I feel better already.
now we all know that if you share online that the opposition can take shots at you....maybe not right away but they will track you down...even if it
takes hundreds of years to do so
(that's why copyrights last so long)
The solution? Sneaker Net.
You young whipersnappers out there may not remember Sneaker Net,but before computers were connected we had Floppies!
when you had something to share you put on your sneakers and with floppy in hand you would run down the hall and hand your floppy to your co-worker or next door neighbor, etc.
It's how the industry got started.
Now I know at least three people who know at least three people who know at least three people,etc,etc.
You do the math.
Now when that new overpriced unavailable new release hits the shelves, it can go viral worldwide in a matter of days
They don't want us to share online? Fine...I'm okay with that.
War over. WE WIN
Techies 1... Big Content 0
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
On top of that you can layer distributed websites, and all sorts of other fun things.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
Do not consume at all!
[ link to this | view in chronology ]
You completely misunderstand. They don't think Floyd Abrams is the only voice that matters.
They think the only voices that matter are those of a few studio executives and recording companies that can afford to lobby congress, even if their actions are ultimately self defeating and a betrayal to the American people.
The fact they were able to pay a well known lawyer to agree with them is just gravy.
[ link to this | view in chronology ]
for as long as they can keep 'encouraging' Congress to side with them and for as long as they can keep conning the people. sooner (hopefully) than later, the entertainment industries will be shot down! if the Bills go through, as soon as it is reported that x number of people have lost their internet connection, been sued, been fined or been jailed, all on possible false evidence and simply the demands from those industries, uproar could ensue. when the Internet grinds to a near halt and the economy suffers, perhaps then those in power will be brought to task!
[ link to this | view in chronology ]
Re:
From a recent report on the Air France crash
Intense psychological stress tends to shut down the part of the brain responsible for innovative, creative thought. Instead, we tend to revert to the familiar and the well-rehearsed.
They will continue doing that until their industry "hits the sea".
[ link to this | view in chronology ]
Which is something the courts have already held as constitutional. Some protected speech may be harmed when unprotected speech is removed, this in part keeps offenders from using small amounts of protected speech as "human shields" against legal action.
I am surprised that any scholar would be arguing about something the courts have long since established as legal and acceptable.
[ link to this | view in chronology ]
Re:
I think that you will find that SOPA/PIP will affect far more than just "human shield" style speech. The fact that there may be an exception for cases where small amounts of "protected speech" are being used cynically does NOT mean that this law is OK.
In fact you yourself are using this exemption cynically because we all know that SOPA PIPA is really about shutting down all user generated content on the internet and turning it into something big content companies can control.
[ link to this | view in chronology ]
Re: Re:
If you make content, all original, it is yours to do with what you like. My personal recommendation is not to put it on sites that feature plenty of pirated stuff or "remixes" that have no legal basis.
I am actually suspecting that SOPA will be the trigger for many more online co-op style sites, where artists who know each other work together, and where "user generated" content is evaluated and run only when it is shown to be legal.
SOPA is not at all about shutting down any legal content. Are you suggesting that all user generated content is in violation of copyright?
[ link to this | view in chronology ]
Re: Re: Re:
contradicts
"SOPA has nothing to do with shutting down user generated content"
You're naive or a liar if you think that a "only allowed if shown to be legal" bar won't effectively kill user generated content. It's equivalent to the police closing down your store and demolishing it because one of your customers happened to do something illegal while in your store.
[ link to this | view in chronology ]
Re: Re: Re: Re:
Pure and utter bullshit, and you know it.
Look, it's pretty simple. If your "user generated content" is legal, what's the problem? The real issue lies in the fact that so much of the "user generated content" is either remixes of other works, or uses copyright content as the basis for it's work (such as music, images, etc). Rather than truly producing unique work, too much of what is out there is just plain illegal, and not much more.
If you have original work, you have no issues.
So yeah, if it means that it kills crappy reposts, pirated content, and cheap remix videos, then yes, it kills user content. The world is probably a better place without it anyway, and to be fair, it's not legal even under current laws, so why worry?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Under that aspect of copyright law, someone can use parts and in some cases whole copyrighted content and not be found liable for copyright infringement.
SOPA makes no exceptions for Fair Use.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Wow, and I thought I was cynical.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
And by the way, do you REALLY think that big entertainment companies will hesitate to obliterate original works? They see original work as taking money out of their pockets. They'll trump up a fake excuse and have that work gone pronto.
[ link to this | view in chronology ]
Re: Re: Re:
Are you protecting crooks?
[ link to this | view in chronology ]
Re: Re: Re:
That is never explained by you people who can't even know when you distribute something to others.
Will every website be forced to hire lawyers to curate the all content?
Somehow I don't see that working well at all.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
As if those could easily be distinguished.
The point is this:
At present it is possible to put up a site hosting user generated content without the expense of manually vetting every submission. This means that content appears instantly (notice how long it takes for comments to appear here when the spam filter is triggered and you have to wait for manual moderation).
You only have to act under existing law when someone complains - so you can safely leave the policing of copyright to the rightsholders.
SOPA would, at minimum, force manual manual moderation onto such sites - as you yourself admit. This is hugely expensive and would kill many businesses.
I believe that this is actually the intention of those who are behind the bill - since they want to kill the competition.
[ link to this | view in chronology ]
Re: Re: Re: Re:
So they want to kill the small businesses, the small artists, and the kids who put videos of themselves on youtube. They want to rewind the world to the 1970s.
[ link to this | view in chronology ]
Re:
You mean like entire domains, like what has happened recently?
One person runs afoul of this law, and tens of thousands of people get get their rights trampled on.
Your "human shield" analogy is apt. It's like dropping a nuclear bomb on a city to take out a serial killer.
I can see the headlines now "Yes, 100,000 people were killed by the bomb, but we got the guy who killed 2 people."
[ link to this | view in chronology ]
Re: Re:
Some of the "rap" sites taken down were packed with illegal remixes, pirated content, and the like. Whatever protected speech might have been nixed wasn't significant compared to the actual action and actual intent of the sites.
Your nuclear example is bullshit, end to end, and you know it. These sites don't have 1 or 2 offending items on them, they were packed end to end, and provided a system that encouraged users to keep it up. So 1 or 2 civilians were killed, but you got rid of 100,000 criminal acts. Seems like a good trade.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re:
Once again: you keep saying this, and it keeps being false.
What has been said, repeatedly, by the courts, is that if you are targeting unprotected speech, the law must be as narrowly tailored as possible to target only that speech, and not protected speech.
Neither SOPA nor PROTECT IP even attempt to do this. Instead, they cut off funding and advertising to entire domains, protected speech and all, ex parte.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re: sopapilla
[ link to this | view in chronology ]
Re: Re: sopapilla
I intentionally typed it like that because that is what I read every time I see SOPA/PIPA ... and I like Mexican pastry.
[ link to this | view in chronology ]
Can anyone explain that to me?
[ link to this | view in chronology ]
Re:
I guess you know already that criminal proceedings are often brought by the State, while civil proceedings are often brought by private citizens (although this isn't a hard-and-fast rule).
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
There is. But it's woefully lopsided. There is no penalty for false notices by rightsholders, but counternotices must be made under penalty of perjury. Everything is structured to allow rightsholders to send as many notices as they want with zero risk, and to incentivize service providers to immediately comply with those notices.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re:
Under SOPA/PIPA, the notice and takedown is for an entire site, no matter what the ratio of legal to illegal content is.
That is why DMCA can be seen as constitutional, although it does have its issues with its notice, takedown, counter notice, restoration procedure. That is why SOPA/PIPA is unconstitutional because it unfairly effects legal speech in its attempts to block illegal speech.
[ link to this | view in chronology ]
Re: Re:
And SOPA notice-and-takedown doesn't take down any content. It only applies to online advertisers and credit card processors.
[ link to this | view in chronology ]
Re: Re: Re:
It runs directly contrary to the first amendment and supreme court precedent.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
But with SOPA and PIPA, as others have already said, constitute prior restraint on and entire site. To say that the removal of revenue from a website's operation would not result on the site being taken down is disingenuous.
[ link to this | view in chronology ]
Re: Re: Re:
Do we shut down the theater because someone yelled "Fire?"
"And SOPA notice-and-takedown doesn't take down any content. It only applies to online advertisers and credit card processors."
You can still work here, but we aren't going to pay you anymore.
[ link to this | view in chronology ]
Re: Re:
Perhaps you ought to read the definition of a rogue site where it says the site must be dedicated to infringing activity with no other significant lawful purpose. FUD much?
[ link to this | view in chronology ]
Re: Re: Re:
I don't remember reading "with no other significant lawful purpose" last time I looked over the bill.
[ link to this | view in chronology ]
Re: Re: Re:
Unfortunately a takedown can be sent based on the "good faith belief" that a site is "dedicated to infringing activities", all the incentives are for service providers to automatically comply, and there is no penalty to the rightsholder if the site is later declared legal (whereas there is penalty of perjury for the site owners if they file a counternotice and lose)
If you don't see that abuse is inevitable, you are woefully naive.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re:
There is no court involvement when anyone claiming to be a content owner can just ask financial institutions to stop doing business with others on their say so and have to comply in 5 days or be open to litigation while the guy doing the asking has no obligation to state the truth and will not be hold accountable for what he did, since the incentives are not there for people to fight this, nobody is going to fight over a free blog shutdown, or a $100 dollar hosted blog not inside the US and even more so for people outside of it that would find it very difficult to hire a lawyer in foreign land, so only the people with real cash will be the ones doing anything, and that is just the tip of the iceberg there.
You didn't read the law did you?
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
Not true. The only part under penalty of perjury for the one filing the notice is their statement that they are an authorized agent of the rightsholder. Everything else is completely penalty-free. Meanwhile, EVERYTHING in the counternotice is made under penalty of perjury. That's one of the major imbalances of this bill.
(sorry to repeat this in several spots on this thread but it's a really important part - the bill is worded to make it sound like there is penalty of perjury on both sides, when in fact it's not at all the same)
[ link to this | view in chronology ]
Re: Re: Re: Re:
Untrue, Marcus.
Section 103(b)(4)(vii): "A statement that the information in the notification is accurate, and, under penalty of perjury, that the signatory is authorized to act on behalf of the holder of the intellectual property right harmed by the activities described in subsection 24 (a)(1)."
Source: http://judiciary.house.gov/hearings/pdf/112%20HR%203261.pdf
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
The counter-notification language is clearer: "A statement under penalty of perjury that the owner or operator, or registrant, has a good faith belief that it does not meet the criteria of an Internet site dedicated to theft of U.S. property as set forth under this section."
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
And when they do, you'll have a point. Until then, the natural reading is the proper interpretation. As such, there is no penalty of perjury for the copyright holder of "Mr. Pig Goes on a Killing Spree" to send notices to each and every website on the internet, subjecting advertisers and payment processors to litigation liability if they don't cut the cords in 5 days.
I also seem to recall something about the SOPA counternotice beeing toothless. DMCA requires content to be reposted if a proper counternotice is submitted. I was under the impression that SOPA counternotice had no ushc obligation.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re:
Personally, I am a fan of scrapping SOPA as it is. I am currently looking at Wyden's OPEN act that he proposed as an alternative to SOPA. So far, it seems far more reasonable.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
English 101: this is a compound sentence - two clauses joined by a conjunction, and the clauses are independent of each other. To avoid conclusion, they aren't necessarily "independent clauses" as that's a technical term, but they are mutually independent.
We can write the sentence as "A statement [clause 1] and [clause 2]." Taking a page from algebra, we can turn this into "A statement [clause 1] and a statement [clause 2]." while retaining most of the meaning. [Clause 1] is "that the notification is accurate," while [clause 2] is "under penalty of perjury, that the signatory is authorized to act on behalf of the holder of the intellectual property right harmed by the activities described in subsection 24(a)(1)."
For the meaning you wish to apply, it would have to read "A statement, under the penalty of perjury, that the notification is accurate and that the signatory is authorized to act on behalf of the holder of the intellectual property right harmed by the activities described in subsection 24(a)(1)."
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re:
During the Diebold takedowns, and in a few other cases since then, groups of committed volunteers �Americans and our friends around the world� have mustered to ensure that documents remain published and readable on the 'net.
You savvy a constitutional muster?
[ link to this | view in chronology ]
Re:
It is like if a bully kicks you in the shins everyday and you can't get him to stop so you start wearing shin guards. After a while you are just glad he isn't punching you. The whole SOPA think is like him putting on brass knuckles and loading his shotgun while he tells you it is only for those who really deserve it.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Here's the cause, though: 'from websites "enabling" infringement'
This isn't as above, that "one of your customers happened to do something illegal while in your store", it's putting a big sign saying "THOUSANDS OF LINKS TO FREE INFRINGING CONTENT HERE! LATEST MOVIES! STEAL 'EM WHILE THEY"RE HOT!", then claiming that you know NOTHING about infringement, are NOT at all facilitating it, and have NO responsibility to respect copyright even to prohibiting the links, no control over your own site, no sway over users -- and aren't getting money from the eyeballs on ads! It's an extremely narrow legalistic position that fails the common sense test.
With heaps of money at stake (or just forget about control over distribution?), there's going to be a reaction. Blame Mike for providing a plausible justification for piracy, that his band of pirates picks up and echoes without thought.
[ link to this | view in chronology ]
Re: Here's the cause, though: 'from websites "enabling" infringement'
At some point we must decide what is important, your greed or our freedom.
And to be sincere I could care less to what happens to you and your kind.
[ link to this | view in chronology ]
Re: Here's the cause, though: 'from websites "enabling" infringement'
"Enabling" infringement in order to protect free speech is and always will be preferable to enabling censorship in order to protect copyright
[ link to this | view in chronology ]
Re: Here's the cause, though: 'from websites "enabling" infringement'
We need laws controlling hands. If we cannot have that, we must cut them all off.
Let's start with yours.
[ link to this | view in chronology ]
Fourth Amendment Too
[ link to this | view in chronology ]
why SOPA is necessary
[ link to this | view in chronology ]
Huh? How can an expert on copyright and First Amendment doctrine pretend like SOPA gets strict scrutiny? Give me a break. This analysis is so biased that I have to wonder who hired him to write it. Was it Google?
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
A Poison Pill for SOPA
I hope this would make it clear how over-the-top the law is when Kinko's ability to take credit cards can be removed by a single accusation without any judicial proceedings.
[ link to this | view in chronology ]
meh..
[ link to this | view in chronology ]
Re: meh..
[ link to this | view in chronology ]
yeah i should REALLY trust them when it comes to the internet.
[ link to this | view in chronology ]
[ link to this | view in chronology ]