November 7, 2011 | By Trevor Timm

The Stop Online Piracy Act: A Blacklist by Any Other Name Is Still a Blacklist

During the past week, momentum against the House’s draconian copyright bill has gained steam, as venture capitalists, Internet giants and major artists have denounced it for handing corporations unprecedented power to censor countless websites and stifle free speech. In response, the bill’s big-pocketed supporters have gone on the offensive, attempting to mislead the public about the bill’s true reach. In a particularly egregious example, the Chamber of Commerce posted an attack on its website insisting that the Stop Online Piracy Act (SOPA) is not a “blacklist bill."

Before they even saw the House bill, they started calling it the “New Internet Blacklist Bill.” Blacklist?  That sounds pretty bad. But before we get carried away, let’s take a look at the actual language of the actual legislation. Can YOU find a blacklist? No? Can you find a list of ANY kind? No?

Of course the word “blacklist” does not appear in the bill’s text—the folks who wrote it know Americans don’t approve of blatant censorship. The early versions of PROTECT-IP, the Senate’s counterpart to SOPA, did include an explicit Blacklist Provision, but this transparent attempt at extrajudicial censorship was so offensive that the Senate had to re-write that part of the bill. However, provisions that encourage unofficial blacklisting remained, and they are still alive and well in SOPA.

First, the new law would allow the Attorney General to cut off sites from the Internet, essentially “blacklisting” companies from doing business on the web.  Under section 102, the Attorney General can seek a court order that would force search engines, DNS providers, servers, payment processors, and advertisers to stop doing business with allegedly infringing websites.  

Second, the bill encourages private corporations to create a literal target list—a process that is ripe for abuse.  Under Section 103 (cleverly entitled the “market based” approach), IP rightsholders can take action by themselves, by sending notices directly to payment processors—like Visa, Mastercard, and PayPal—demanding that they cut off all payments to the website. Once notice is delivered to the payment processor, that processor has only five days to act.1 The payment processor, and not the rightsholder, is then responsible for notifying the targeted website. So by the time Visa or Mastercard—who will no doubt be receiving many of these notices—processes the notice, informs the website, and the website decides whether to file a counter notice, the five days will almost certainly have elapsed. The website will then be left without a revenue source even if it did nothing wrong.

Third, section 104 of SOPA also allows payment processors to cut websites off voluntarily—even if they haven’t received a notice. Visa and Mastercard cannot be held accountable if they cease processing payments to any site, as long as they have a “reasonable belief” that the website is engaged in copyright violations of any kind. Hmm, wonder how long it will take big media to publicly post a list of allegedly infringing sites, and start pressuring payment processors to cut them off? As long  the payment processors are willing to comply, the rightsholders can essentially censor anyone they see fit. Even well-meaning payment processors might do this to avoid liability down the road.

The potential for rampant abuse is obvious—whether it’s a frivolous claim that wouldn’t withstand the scrutiny of the official process or an attempt to put an emerging competitor at an extreme disadvantage.

Clearly, contrary to the Chamber of Commerce’s rhetoric, SOPA gives rightsholders many ways to blacklist a website: they can hope the attorney general acts, they can cut off a website with a notice, or they can give notice unofficially and let the payment processors do their dirty work for them. Please help keep the Internet free and take action to help stop this bill!

 

  • 1. This same provision applies to advertisers when the alleged infringing website does not rely on payment processors for revenue.

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