The Facts on PROTECT-IP and the Stop Online Piracy Act: More Scary – but Unsupported – Rhetoric

A guest column in today’s New York Times may have set new records for overblown rhetoric about legislative efforts to curb offshore rogue websites profiting from illegal distribution of American intellectual property.

In it, Rebecca MacKinnon of the New America Foundation accuses the bipartisan legislation of establishing blacklists, firewalls and censorship. Scary indeed, and who wouldn’t be concerned about legislation that would do these things.

These claims are untrue, and we will explain that further momentarily.

But first, it is extremely disappointing that the New York Times would publish this column without acknowledging that the board of Ms. MacKinnon’s New America Foundation is chaired by Eric Schmidt, chairman of Google, whose business model relies on monetizing online searches and ad sales against popular content – whether legal or illegal. Google earlier this year paid one of the largest fines ever after settling a federal criminal investigation after it made hundreds of millions of dollars for knowingly placing ads for rogue online pharmacies.

Moreover, in a lawsuit against rogue website operators Luke Sample and Brandon Drury a few years ago, those individuals submitted an affidavit attesting to the fact that Google employees actually assisted them in crafting ad word buys that would drive more traffic to their sites. Among the suggestions were to use the terms “free” together with titles of movies still in theatrical release. Both these examples demonstrate Google’s known financial interests in profiting from infringing activities on rogue sites. Members of Congress alluded to these interests at a hearing today in the House Judiciary Committee, commenting that Google’s interest with respect to the legislation seems to be to “follow everyone’s money but theirs.”

Setting aside the obvious and unacknowledged conflict of interest of the author, let’s look at the claims related to free speech. Any rogue sites that could be implicated by the bills - PROTECT IP or the Stop Online Piracy Act (SOPA) - would be of necessity engaged in commercial activity.  This means that the standard to apply is that applicable to commercial speech as established by the Supreme Court.

Actions affecting commercial speech do not violate the First Amendment if: 1. the regulated speech concerns an illegal activity; 2. the speech is misleading, or 3. the government's interest in restricting the speech is substantial, the action in question directly advances the government's interest, and 4. the regulation is narrowly tailored to serve the government's interest.

SOPA definitions are very narrow and rooted in existing Supreme Court precedent that domestic sites must already live up to.  To be a site “dedicated to infringement” a site must: