Today, thousands of sites across the internet have voluntarily blacked themselves out in protest of two bills pending before Congress: the Stop Online Piracy Act (SOPA) in the House of Representatives, and its Senate version, the Protect IP Act (PIPA). Although intended to serve the laudable goal of combating online piracy of copyrighted works , the consensus among these protestors (which include most of the largest companies in Silicon Valley) is that SOPA & PIPA contain at least the following flaws:
One question that I haven't seen articulated very often, however, is whether these Acts would pass constitutional muster if they were ever challenged in Court. That's where renowned constitutional scholar Laurence H. Tribe comes in. He has published a lengthy legal memorandum detailing several reasons why SOPA and PIPA violate the First Amendment's protection of free speech. Those reasons include:
To this list, I would add the fact that neither Act appears to acknowledge or respect the defense of "fair use" protected by the Copyright Act. Courts have explained that this defense is a "safety valve" necessary to ensure that First Amendment rights are respected in situations where their exercise may technically constitute copyright infringement. In one recent, celebrated decision, a federal judge ruled that a copyright owner ran afoul of this defense by failing to consider a YouTube user's potential fair use rights before demanding that her video be removed. Under SOPA and PIPA, however, the owner could have simply demanded that the whole of YouTube be blocked because of that video.
Some of Tribe's arguments overlap each other, and include policy considerations that go beyond the bounds of First Amendment case law. Nevertheless, these are important considerations that raise issues at the heart of our constitutional democracy. They also lay out paths to a legal challenge in the even that SOPA and PIPA become law.
