censorship pipa sopa final draft

Censoring the Internet: Would it Protect or Decimate the United States?

Federal government has been success in dictating United States citizens on how to talk, what to

talk about, who they are able to talk about, and the context of speech allowed for centuries. While it

seems that censorship has lessened in the past 50 years – and it has in most cases – there is a false light

in this because recently government has attempted to censor the largest network in the world: the

Internet. There is an impact on the First Amendment in such a way that people's expression will be

censored for the benefit of compensation for pirated goods (music, movies, shows, books, etc). Many

cases have been won by the defendants of the First Amendment for various reasons; people who took a

stand for their Constitutionally given rights and resisted censorship of their livelihood. Because of these

people fighting monumental cases, such as in Virginia v. Black, Texas v. Johnson, and Brandenburg v.

Ohio, Americans were given what is rightfully theirs – their opinions that could not be crushed by

Federal government. The major court case that relates to censorship via media sharing is Sony

Corporation of America v. Universal City Studios (SCA v. UCS). The issues brought up in the case

directly affected file sharing in the modern era; in other words, piracy. The focus of this research will

be on the major bills that were attempted to be passed into law by Federal government – PIPA and

SOPA – and how these bills could have potentially changed the concept of freedom as America knows

it. The bills will be dissected, for the better and worse, and the reasons for which these bills have been

postponed will be addressed. To finalize the research, SCA v. UCS of 1984 will be broken down and put

into modern perspective with the bills and express possible signs of the outcome being a new standard

for new technology.

Protect IP Act of 2011, or PIPA, was introduced by Senator Patrick Leahy in the U.S Senate on

12th May 2011. The Stop Online Piracy Act, or SOPA, was presented by the Judiciary Committee

Chair Texas Republican Representative Lamar Smith in the United States House of Representatives on

26th October 2011(Ho 2012). These bills are meant to protect copyright owners from Internet pirates 1


who share copyrighted material via file sharing known as person to person (P2P) transfer. They would

enact that government has major control over the Internet and its uses. Sites would be fully regulated

and corporations such as Google would be starved of resources in which their users would be extremely

limited in choice of websites and information. SOPA triumphs over PIPA, adding new disclosures such

as blocking access to sites where copyright infringement might be an issue; allowing government to

shut down websites that offer pirated material; and allowing all copyright owners to hold court orders

against any site accused of copyright infringement – which includes barring online advertising

networks, censoring payment sites (such as PayPal, Visa, and MasterCard), from linking to any of the

accused sites, and mandate that Internet service providers (ISP) to block all allowances to the accused

sites (Ho 2012). PIPA is still very much a censorship bill, but was much more relaxed before SOPA

came about. PIPA would not regulate search engines for removal of foreign websites and would require

that courts take more time in determining the fate of accused websites. SOPA would also expand upon

PIPA in reference to

section 103(b)(6) which [penalizes] copyright holders who ‘knowingly materially misrepresent’ the infringement by ‘making them liable for damages incurred by themisrepresentation’.This could potentially act as a restraint on making unwarranted assertions that an item is infringing; its absence from PIPA means that others, including ISPsand content posters, would be more likely to bear the costs of unsubstantiated assertions by copyright holders under that Act (Ho 2012).

PIPA/SOPA has been supported by sectors around America. “Who wants SOPA? Content

creators such as Hollywood and the music industry” (Denver Post). The reason for them to be so

supportive of these bills is, as “they say... despite successful efforts domestically to crack down on

piracy, outlaw hosting and link sites have moved offshore and made it much tougher for authorities to

shut them down. The U.S. Chamber of Commerce says it stifles American innovation and labor unions

say online piracy costs U.S. jobs” (Denver Post). It is very true that America is getting stolen from by

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other countries as these foreign sites allow for unlimited downloading of almost anything out there.

These high-yield industries have also been literally banking on these bills and the protections that they

would serve for copyright holders. PIPA/SOPA could stop Internet piracy as it is known from the firm

laws it would lay down. The threat of the consequences that individuals or small businesses would

mute P2P transfers very quickly. It would also threaten freedom in that it would “require 'a service

provider [to] take technically feasible and reasonable measures designed to prevent access by its

subscribers located within the United States to the foreign infringing site'” (Magid 2012). That is where

the threat of over-censorship comes into play.

The 1971 case of New York Times v. Mitchell is an example of a case where this law, if the

Internet was around at that time, would have possibly fallen into place. In this case, known as the

“Pentagon Papers” case, is where Federal government sought to censor major newspapers to prevent

them from publishing secret documents that would endanger National Security. The Newspaper said it

was a clear-cut First Amendment issue involving information of great importance to citizens. If this

was an issue of today, it would be very similar to what PIPA and SOPA in that people only can see or

have what the government wants them to see or have. The outcome of the case might be similar to what

the outcome of PIPA/SOPA would be if the people were to stand united, firmly denouncing the

potential laws, in which the Federal government was unable to prove the malice and harm it would

cause, therefore losing the case.

The anti-bill party has very good reasons for why they do not want the bills to pass. “The bills

would enable Internet censorship and threaten free speech by providing the U.S government and

copyright holders with unprecedented powers to shut down websites, including those in other

jurisdictions, that are alleged to be infringing U.S copyright laws” (Ho 2012). When the First

Amendment is brought up, the case will be fought until justice is determined. It is essential that these 3


bills not be passed, but why? Because, giving government and any person with a copyright the power

to destroy other people's expression – free expression – would lead the U.S. further from democracy

and the principles our found fathers built this country upon would be tarnished. The country would fall

more under the category of Fascist than any other type of government because the people would be

forced to relinquish control over their opinions, ideas, branches of ideology, rights, etc. to the

government to decide. This would be detrimental to our society as it has evolved. One day, a person

would be able to search Google and find exactly what they need of one source from another credible

source (who gave credit to the original source), and then the next day it would be gone as if it never

existed. It would be impossible to get necessary information that is taken for granted and accepted as a

mainstream of American and modern-world society, but it goes much deeper than screening websites

for copyrighted information.

Another dangerous aspect of the bills is that websites who have pirated material on the site –

mostly user-generated content sites such as Twitter, Facebook, and MySpace – could be exposed as

pirating sites and tried in court with serious consequences at risk. Facebook creator, Mark Zuckerberg,

is strongly opposed to PIPA/SOPA. He “acknowledged that 'rogue foreign sites that pirate American

intellectual property or sell counterfeit goods pose significant problems for our economy,' but PIPA and

SOPA 'are not the right solution to this problem, because of the collateral damage they would cause to

the Internet'” (Albanesius 2012). Correct, foreign sites do pirate incredible amounts of data from the

U.S. every day, but PIPA and SOPA are not the appropriate bills to enact. “Facebook is concerned by

the 'overly broad definitions' within the bill, as well as provisions that would allow copyright holders to

target Web sites they believe contain infringing content. 'In addition, we are concerned about provisions

in the bills that could chill free expression or weaken the Internet's architecture,' Facebook said”

(Albanesius 2012).4


A site, especially a website that is so strongly user-interfaced, is difficult to manage. Screening

every last page, button click, and file on a site like Facebook is impossible. In order to be able to do

that, Facebook would have to freeze the site for an extended amount of time just so they could try to

catch up with everything from the site's recent and distant history. They would have to do this every

day as well. With the millions upon millions of users, the amount of data uploaded to the site, pirated

and not, would overwhelm the networks and screens that would have to be put into place at a much

more sensitive level. Even if they were find a way to manage the vast amounts of material flowing

throughout the site, there would still be those who would find a way around the system and be back to

pirating in by the time the moderator deleted the copyrighted material. “The problem with this is that

the entire site would be affected, not just that portion that is promoting the distribution of illegal

material. It would be a bit like requiring the manager of a flea market to shut down the entire market

because some of the merchants were selling counterfeit goods” (Magid 2012). This means, realistically,

that almost every major networking site, including blogs and sites such as LinkedIn, would be under

review more time than it was available. Individuals, groups, businesses, mainstream, and

“underground”news sites would protest with hostility.

This bill would eradicate the form of expression known as “blogging”. “Blogging syndication

could be shut down due to a single violation from an entry or comment that contained a copyright

infringement” (Ho 2012). This is an impossible situation that the site creator(s) and moderators are put

in as there is a hundred times the amount of information on a site than they are able to manage

effectively. If only one link or copyrighted expression was to be posted, everything that was created

would be destroyed. It could possibly be because of a nine year old child in Wisconsin violating the

terms of copyright infringement by uploading a song to their profile that could shut down major sites

without even knowing what he did. 5


As the “Occupy” movements have proven, Americans are becoming extremely frustrated with

the government and expressing their opinions in mass quantities throughout dozens of major cities

across the country. If the Internet became so centralized on government censorship that any site can and

will most likely be reviewed, the crowds would evolve to a new level of protest in which vetoing the

bills would be the only means of handling the situation. If not, it would halt the evolution and

revolution of technology across the planet.

The debate over the bills and their shaky application of law to stop piracy made it to the White

House earlier this year, where they were prefaced with the statement that legislation would have to “'be

narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited

under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal

activity'” (Albanesius 2012). Later, SOPA sponsor Lamar Smith said, “The White House has urged

Congress to act this year. I am committed to working with my colleagues in the House and Senate to

send a bipartisan bill to the White House that protects free speech, the Internet and America's

intellectual property... the Stop Online Piracy Act does just that...” (Albanesius 2012).

After it looked as if these bills were going to be seriously considered by the elite deciders of this

country, Wikipedia, an online Encyclopedia site, “blacked out” their site in protest. They did this to

show how this bill would affect the Internet and browsing for information. For 24 hours, people trying

to access Wikipedia were directed to a black screen, signifying that the information on that page had

copyrighted material that, though cited and accredited properly, could be under punishment of the court

if government and copyright owners had the authority and power to subvert any website where

copyright material might be processed (Albanesius 2012). Representative Smith struck Domain Name

Service (DNS) blocking from the bill, but Senator Patrick Leahy did not agree and rather wanted to

research DNS blocking before he would allow implementation of this change. Without blocking, 6


“SOPA would still allow officials to 'follow the money' and cut off payment options to foreign illegal

sites, like credit-card processing or PayPal accounts. Search engines like Google and Bing would also

still be required to remove infringing Web sites from their search results” (Albanesius 2012). Copyright

holders would still be able to attack foreign, fraudulent websites who stole anything from them. Yet,

detractors are unsure about the bills as they might still allow for legitimate websites to fall in the cross-

hairs of infringement because the bills are still too far-reaching.

Very soon after the expression of Wikipedia – which many other sites took similar action in

countering/protesting the bills; like reddit.com and Google who implemented a link on their home page

that directed people to a site detesting PIPA/SOPA instead of their normal logo – Congress decided to

postpone authorization of the bills until there is wider support backing them. “'I have heard from the

critics and I take seriously their concerns regarding proposed legislation to address the problem of

online piracy,' [Lamar] Smith said. 'It is clear that we need to revisit the approach on how best to

address the problem of foreign thieves that steal and sell American inventions and products'” (Callegari

2012). On January 23, Leahy expressed that he had hope that Senate would be able to find a solution to

the many problems of the bills, but as seen today, this has not happened yet.

In fact, more and more people are rising against PIPA/SOPA as protestive rhetoric flows

through the veins of many individuals who utilizes the Internet to its ability. More people are hearing

how disgusting the bills are to American liberty and laugh at the idea of Congress bringing them back

to vote on, but are apprehensive about the “what if” of it passing. If Congress is to do so, they are going

to have quite the challenge on their hands as they will have to create possibly the most difficult bill –

with all loopholes and loose ends to cover – to date in order to stay within the limitations of the

Constitution (Callegari 2012) because it is such a powerful, comprehensive set of bills. It seems that

any angle used to approach the utilization of this mandate conflicts with the First Amendment; It will 7


destroy the element of the Internet that deems most useful, the free-flow of information; The court

systems will become flooded with SOPA cases, slowing the system and delaying cases that should take

precedence, such as murder one or assault or rape. There are too many reasons why this bill, while

having good intentions, is such a weak excuse for a strict, mandatory piece of legislation; or as Mark

Zuckerberg would say, they are “poorly thought out laws” (Albanesius 2012). The amount of

misjudgments of possible copyright infringement would be astounding. It would clutter the system full

of cases that are utterly pointless which would inevitably make them miss the opportunities to find truly

detrimental piracy-in-action. On the contrary, there are many cases in which they would catch mass

reproduced copyrighted-protected products from being sold. For example, there was a case of mass

reproduction in 1984 that changed how copyright infringement would be imposed to violators in the

future for similar crimes.

One case stands out from the rest when it comes to media sharing – Sony Corporation of

America v. Universal City Studios was a case in which Sony developed a VHS recorder that allowed

people to record copyrighted material, such as television programs and movies, for their own viewing

pleasure without having to pay for the rights. “Sony Corporation of America manufactured and sold the

"Betamax" home video tape recorder (VTR). Universal City Studios owned the copyrights to television

programs broadcast on public airwaves. Universal sued Sony for copyright infringement, alleging that

because consumers used Sony's Betamax to record Universal's copyrighted works...” (Oyez.org).

Seeing as Betamax owned the rights to the airwaves being recorded by these devices, “Sony was liable

for the copyright infringement allegedly committed by those consumers in violation of the Copyright

Act. Universal sought monetary damages, an equitable accounting of profits, and an injunction against

the manufacturing and marketing of the VTR's.” The court denied Betamax, holding that the

“noncommercial home use recording of material broadcast over the public airwaves was a fair use of 8


copyrighted works and did not constitute copyright infringement.” The court concluded that Sony could

not be held liable even if the using a VTR was considered an act of infringement. Betamax appealed

this case. In the appeal, the court held Sony liable for contributory infringement because the VTS

extended past the limitations of the Fair Use Doctrine – which would not allow individuals to copy as

many tapes as they wanted, which included the use of the full artifact for personal consumption –

which is tolerant of copyright usage for reviewing or critiquing the media. The Fair Use Doctrine does

not protect personal consumption of a good if rights to that good have not been properly obtained.

Fonovisa v. Cherry Auction was a landmark case in deciding the appeal. To sum up this case

quickly, Cherry Auction ran a swap meet where vendors could set up tables and buy/sell whatever they

wanted. Cherry Auction also charged an entrance fee in order to make a profit which would haunt them

in the near future. It was discovered one day that a vendor was selling boot-legged, or pirated, music in

which Fonovisa owned a copyright to. Cherry Auction was held responsible for contributory copyright

infringement as well as vicarious copyright infringement. It came down to the collection of a fee from

everyone who entered, meaning that they were making a profit from the vendor selling pirated music

from the customers entering. This is obviously an illegal means of revenue and they were punished

heavily monetarily.

How does this apply to PIPA and SOPA? It seems apparent as “stop” and “piracy” are built into

the name. Napster, LimeWire, uTorrent, and FrostWire are modern examples of what Sony created.

While there is far more media that can be transferred illegally now, the concept is the same – taking

property copyrighted by someone else and consuming it free of charge without authorization from the

creator. Millions of times per day these exchanges take place on the sites above, as well as many more,

and it is an obvious swampland of copyright infringement. The artist/creator gains no benefit from the

individuals pirating these movies, songs, albums, discographies, programs, etc. and people are stepping 9


away with literally thousands of dollars of “free” products. Government has been eager to stop this

trend for years, but they still have a long way to go in order to concoct a bill, or bills, that will stop

piracy without infringing on our rights given by the Constitution.

Programs such as LimeWire, FrostWire, and uTorrent do not charge a fee like Cherry Auction

did (other than to those who want an even faster connection, but it is legal). Therefore it is difficult to

fully apply that case to PIPA/SOPA in an appropriate manner, but peer to peer sharing mimics Sony's

VTR while even raising the bar to a new level. These programs make it as simple as clicking a mouse

button three times in order to gain access to virtually any video, movie, song, album, program, and/or

video game in existence. It is better put as such: if it is on someone's computer, it is available to the

downloader free of charge. Furthermore, the speed and access points of the Internet have reached

historic levels and show no sign of slowing down or condensing any time within the viewable future.

With these statistics, it becomes obvious that there are more torrent and other various pirating sites

available than the human can conceive of quite yet. If there was a constant threat of every site having

some connection to one of these downloading sites, which most are in some way – large or minute –

connected, the government will basically have to audit every link that comes up in a search engine. The

ever-running chain of these sites interlocked within other sites within other sites will destroy any

objection to illegally downloading because, simply put, there is just too much to screen. By the time the

government is able to screen and edit everything with a connection to some form or piracy,

programmers will have already created a new network in which to share data. It is an impossible loop

that cannot be outrun unless completely shut down; that is something that officials that have not

seemed to have taken into consideration while debating the issue at hand.

The ruling of SCA v. UCS, with Sony inevitably losing the case in the appeal, can be applied to

how government should handle peer to peer downloading. The problem is, who is/are the one(s) to 10


pursue? LimeWire, uTorrent, and Napster can only be held accountable to a certain degree because they

are not profiting off of illegal file trading; their means of profit rely on people subscribing to their

programs to download, effectively purchasing copyrights like Tivo subscribers do. Federal government

is forced to pursue individuals who are centrifuges for mass media reproduction distribution. This is not

affective to the “community” as a whole and that is why they introduced PIPA and SOPA to legislation.

With the limitations that enacting these bills holds, mass protest will be apparent before any real

progress could possibly be accomplished.

Government already has more control over censorship than many agree to, and this concept of

Internet censorship opened the eyes of Americans everywhere, but also to the world. The world knows

it would be directly or indirectly affected in some way if Protect IP Act and Stop Online Piracy Act

were to rear its head again and somehow pass through Congress. The country as a collective – minus

movie producers, music producers, and professional business programmers – would rebel against this

level of censorship and demand their rights to the Internet without fear of prosecution. The government

might not have any option if that were to happen other than to veto and rethink reform of Internet

information transfer. It cannot provoke thousands of sites and their owners to become on edge, taking

every possible opportunity to make sure their sites are clean of any piracy or advertisement that might

interfere with copyright law. It is simply too intrusive and unpatriotic to fight this economic battle the

way in which has been offered as an option. PIPA and SOPA are not negative bills necessarily; they just

are overly intrusive, overly limiting, and overly powerful to be an efficient manner in which to reduce

or end piracy in the U.S. The concept is innovative and, after all, good, but it will either collapse the

unity of this country and destroy the common use of the Internet, or it will destroy the principles the

founding fathers established this country on. Either way, if the bills come back without major changes

and a logical formatting of how and for what purposes censoring can take place, the States might find 11


themselves censored into a Fascist country.

12


Works Cited

Albanesius, Chloe. "Facebook's Zuckerberg Formally Opposes SOPA, PIPA." PC Magazine Online 18

Jan. 2012. General OneFile. Web. 1 May 2012.

Albanesius, Chloe. "Opponents Cheer the Demise of SOPA, PIPA." PC Magazine Online 20 Jan. 2012.

General OneFile. Web. 1 May 2012.

Albanesius, Chloe. "White House Jumps Into SOPA, PIPA Debate." PC Magazine Online 14 Jan. 2012.


Albanesius, Chloe. "Wikipedia Also Going Dark Wednesday Over SOPA, PIPA." PC Magazine Online

16 Jan. 2012. General OneFile. Web. 1 May 2012.

Calegarri, John. "Congress postpones votes on SOPA, PIPA." Long Island Business News 20 Jan. 2012.


Corsero, V. (2012). From Betamax to YouTube: How Sony Corporation of America v. Universal City

Studios Could Still Be A Standard for New Technology. Federal Communications Law

Journal, 64, 450-474.

Fonovisa, Inc. v. Cherry Auction, Inc.. (n.d.). Law School Case Briefs. Retrieved May 1, 2012, from

http://www.invispress.com/law/copyright/fonovisa.html.

Ho, V., Connolly, C., & Vaile, D. SOPA and PIPA Fact Sheet for Australian Users.

Magid, L. (2012, January 18). What Are SOPA and PIPA and Why All the Fuss?. Forbes. Retrieved

May 1, 2012, from http://http://www.forbes.com/sites/larrymagid/2012/01/18/what-are-sopa-

and-pipa-and-why-all-the-fuss/.

Sony Corp v. Universal City Studios. Retrieved April 29, 2012, from http://www.oyez.org/cases/1980-

1989/1982/1982_81_1687.

"SOPA and PIPA." Denver Post [Denver, CO] 18 Jan. 2012: 12A. General OneFile. Web. 1 May 2012.13

http://www.invispress.com/law/copyright/fonovisa.html

http://www.oyez.org/cases/1980-

http://http://www.forbes.com/sites/larrymagid/2012/01/18/what-are-sopa-


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