Jen Rubin makes the case today that the anti-piracy bills pending in the House, the Stop Online Piracy Act (SOPA), and Senate, the Protect Intellectual Property Act (PIPA), are likely unconstitutional. The bills essentially call for censorship of online speech in such a way, and with so little recourse for those accused of "infringing" on intellectual property rights, that the bills will likely not survive the scrutiny of the courts even if they do survive in Congress. But if Congress does pass these laws, it will be a testament to the enormous power and influence of two Democratic special interest groups—the Hollywood lobby, comprised of the Motion Picture Association of America and the Recording Industry Association of America, and the trial lawyers.
If you're wondering why lawyers and Hollywood folks would get behind legislation to censor the Internet, you only need to listen to former Senator Chris Dodd, now the head of the MPAA, who last week explained to Variety that the lobby is only asking for the same kind of power to censor the Internet as the government has in the People's Republic of China:
"When the Chinese told Google that they had to block sites or they couldn't do [business] in their country, they managed to figure out how to block sites."
Indeed, that is precisely the kind of abuse of power we are already seeing from the collaboration between Hollywood and the government on this issue. Last week a tech website reported on a website seizure by the Immigration and Customs Enforcement at the behest of the Recording Industry:
The US government has effectively admitted that it totally screwed up and falsely seized & censored a non-infringing domain of a popular blog, having falsely claimed that it was taking part in criminal copyright infringement. Then, after trying to hide behind a totally secretive court process with absolutely no due process whatsoever (in fact, not even serving papers on the lawyer for the site or providing timely notifications -- or providing any documents at all), for over a year, the government has finally realized it couldn't hide any more and has given up, and returned the domain name to its original owner. If you ever wanted to understand why ICE's domain seizures violate the law -- and why SOPA and PROTECT IP are almost certainly unconstitutional -- look no further than what happened in this case.
Even in China they are calling it the “Great Firewall of America.” At least the Chinese are enjoying the irony of the U.S. government moving toward a legal regime that would give it carte blanche to seize and take down websites on the basis of "infringement." Tech Dirt, the site that reported on the above domain seizure, quotes one Chinese blogger on Sina Weibo subversively commenting on the progress of SOPA and PIPA in Congress:
It looks like that we can finally export our technology and value to the Americans. We’re strong, advanced, and absolutely right!