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SOPA and PIPA, the misbegotten twins

Published January 21, 2012 1:01 am

This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

One of my primary roles as general counsel of a technology company is to protect and enforce intellectual property rights. I spend nearly every day in pursuit of modern-day corporate bandits who have stolen our patents, copyrights or trademarks. That is why I was encouraged when I first heard mention of legislation aimed at curtailing online piracy.

I assumed such bills would carefully balance the interests of property protection with the Internet community at large and efficiently target perpetrators while taking into consideration security, due process and free speech issues. I realized I was more than a little mistaken when I began to read and understand "SOPA" and "PIPA," the Stop Online Piracy Act and the Protect IP Act.

These two bills give copyright owners and the federal government the right to take legal action against any websites that either contain or enable the distribution of copyrighted materials. They would grant the U.S. attorney general expanded power to prevent Internet service providers, advertisers, search engines and payment processors from doing business with offenders. The federal government and any complaining entity would be able to effectively shut down the most popular sites over even minor or unintended copyright infringement.

The definition of an "infringing site" is so extraordinarily vague it would likely include any site that allows posting or uploading information (i.e. Facebook, YouTube, Wikipedia, Flickr).

Of tremendous concern is that SOPA undermines the safe harbor protections of the Digital Millennium Copyright Act, shifting the burden of liability from the content provider to the host site. Without the safe harbor, sites such as Facebook will likely have to expend vast resources to monitor, modify and perhaps delete any potentially infringing post or face being shut down.

As I have come to understand the true nature of SOPA, it seems the acronym would be more aptly titled "Stop Online Productivity Altogether."

Not only are these bills alarmingly misguided from a practical and commercial standpoint, they are unconstitutional on multiple grounds. My skepticism was validated by a letter of joint protest from 100 of the nation's finest legal and constitutional minds. Getting 100 lawyers to agree on anything is a miracle unto itself. That these bills can engender such solidarity within the legal community only underscores their serious deficiencies.

I arrived at the same conclusions. SOPA and PIPA violate the First Amendment. Implementation would undeniably result in protected speech being censored. Similarly, SOPA violates due process rights, failing to guarantee notice or an opportunity to be heard in court before their sites are shut down.

Good intentions are not sufficient reason to pass bad laws that hurt commerce, endanger the First Amendment and vest relatively unchecked prosecutorial power with the attorney general.

I give Sen. Orrin Hatch credit for stepping back from two bills so vehemently opposed by Utahns and similarly applaud other members of the Utah federal delegation for standing against them.

In contrast, I am disappointed by Utah Attorney General Mark Shurtleff's unabashed support for these bills. He, more than anyone else, should appreciate the danger of expanding the power of the federal government to regulate commerce and speech.

The Internet has provided transformative benefits to our society because it has largely been free from heavy-handed intervention by the federal government and ill-conceived laws like SOPA/PIPA.

Sean Reyes is general counsel for Provo-based eTagz and a Republican candidate for Utah attorney general..