November 7, 2011 7:35PM

Three Libertarians Raise Concerns about the Stop Online Piracy Act

Two weeks ago, a new bill called the Stop Online Piracy Act was introduced in the House. The bill has attracted criticism from a wide variety of libertarian thinkers. In this post I’ll highlight three of the most compelling responses.

First, at Ars Technica, I interviewed Ryan Radia of the Competitive Enterprise Institute, who argues that SOPA threatens to undermine the legal “safe harbor” that protect sites like YouTube and Flickr from liability for the actions of their users.

Supporters of SOPA say it’s needed to combat “rogue” websites hosted overseas. Such rogue sites deliver infringing content to American consumers while remaining out of reach of American law enforcement. But Radia argues that supporters of the bill are being disingenuous when they claim the bill only targets rogue sites:

“The bill is written in a way that covers a far broader category of sites” than ordinary “rogue” websites, Radia told Ars. “I think this is intentional.”

“Many of the companies that have long wished that the DMCA imposed a greater obligation on online intermediaries to act against infringement see this bill as an effective means of accomplishing their end goals without opening the can of worms of revisiting the DMCA safe harbor,” he said.

Radia pointed out that “it’s entirely possible that an intermediary that is protected by the DMCA safe harbor could also fit within the category of sites dedicated to infringement.” So companies that build websites based on the rules of the DMCA might suddenly find themselves on shaky legal ground.

Radia notes that the legislation is broadly unpopular in the venture capital community and warns that the uncertainty it would introduce could chill high‐​tech investment.

Also today on Time’s website, the Mercatus Center’s Jerry Brito argues that SOPA is a “cure worse than the disease.” He focuses on a provision that allows the government to create a blacklist of alleged rogue websites and compel ISPs to remove them from their domain name servers:

At a moment when Secretary of State Hillary Clinton is urging world governments to keep their hands off the Internet, creating a blacklist would send the wrong message. And not just to China or Iran, which already engage in DNS filtering, but to liberal democracies that might want to block information they find naughty. Imagine if the U.K. created a blacklist of American newspapers that its courts found violated celebrities’ privacy? Or what if France blocked American sites it believed contained hate speech? We forget, but those countries don’t have a First Amendment.

The result could be a virtually broken Internet where some sites exist for half the world and not for the other. The alternative is to leave the DNS alone and focus (as the bills also do) on going after the cash flow of rogue websites. As frustrating as it must be for the content owners who are getting ripped off, there are some cures worse than the disease.

Finally, at CNet Larry Downes of Tech Freedom calls SOPA “Hollywood’s latest effort to turn back time.”

Larry, Jerry, and Ryan all believe that some kind of “rogue sites” legislation is necessary. I’m not so sure; I think Congress struck the right balance when it created the DMCA’s safe harbor in 1998. But either way, we’re all concerned about the detrimental effects that SOPA—and its Senate companion legislation known as the PROTECT IP Act—will have on Internet freedom.