First, I'm not a lawyer, but a significant portion of my career required a capacity to interact intelligently with lawyers from a variety of countries and understand the nuances of law here, there and everywhere. What follows, therefore, reflects my own views and does not constitute legal advice in any form. That said, I'd like to dive right into the thread and offer a few comments.
In it's current form, the act clearly violates the First Amendment of America's Constitution, for several reasons: The notice-and-termination procedure of Section 103(a) runs directly in contradiction of the doctrine of "prior restraint" as it delegates extralegal authority to a private party, thereby granting the power to suppress speech without prior notice or a judicial hearing.
Think about this for a moment, if you will - this provision gives any
complainant party the ability to prevent all online advertisers and credit card processors from doing any
business whatsoever with any
website merely by filing a unilateral notice accusing the site of being “dedicated to theft of U.S. intellectual property”... even if no court has actually found any infringement has occurred. We're not necessarily talking about another MP3 or potential Wikileaks scandal, friends and neighbors. Nope, what we're talking about is anyone taking any sort of dislike to anything anyone else is doing on the WWW and, empowered thus by the law, having the right to enforce an immediate shutdown
. What redress is there covering nuisance filings? None... other than the usual recourse to a civil court which, depending on your ability to file a speedy motion, could result in a some serious delays in business.
The immunity provisions currently contained within the bill create an overwhelming incentive for advertisers and payment processors to comply with such a request immediately
upon receipt. Time and time again, the American Supreme Court has made clear that “only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression [and] only a procedure requiring a judicial determination suffices to impose a valid final restraint.” (Freedman v. Maryland, 1965). SOPA does away with this constraint.
But the craziness doesn't end there: Section 103(a) is also in violation of the constitution as it contains a sweeping definition of what constitutes a website “dedicated to theft of U.S. property.” As it stands now, a site would qualify under the statutory definition if it “enables or facilitates” infringement by a third party, whether or not such activity meets the requirements for secondary liability under existing legal conventions. This deliberate departure from established concepts of copyright law deprives parties of adequate guidelines to interpret the Section 103 definition, thus it's likely they'll err on the side of caution - afterall, who wants to risk the potential nuisance of expensive liabilities?
Although statutory ambiguities may be tolerable in some situations, it's been established by the Supreme Court the First Amendment specifically demands special precision in regulations of protected expression. And then along comes SOPA, providing a complaining party with the ability to file a notice that's simply an allegation that it is harmed by the activities occurring on the site "or a portion thereof" and - bang - the whole site could be shut down. In other words, it's possible an entire website (containing tens of thousands of pages) could be targeted if only a single page were accused of infringement. As strange and unlikely as this may seem, an organization such as Runic would have to pay particular attention to its on-line social spaces (such as these forums) if only to avoid potential strategic lawsuits that will likely arise as an unintended consequence of SOPA.
Frankly, The more I think about SOPA, the more concerned I become - though proponents of this legislation continue to insist the purpose of this bill is to reduce the incidence of copyright infringement, on-line piracy, and illegal advertising, I can't quite get beyond the feeling that what SOPA truly represents is another effort to control the message through legal and extralegal means. If this legislation passes in its current form, I think the WWW will continue to thrive, but it certainly will be an entirely different sort of social space.
(Leaving this thread with this unhappy thought: The nightclubs in Berlin, Germany, 1936, were very popular, I understand...