Lamar Smith: Here’s the Problem Language with Sec. 103 of SOPA

Lamar Smith, architect of SOPA (Stop Online Piracy Act) is on record saying:

The criticism of this bill is completely hypothetical; none of it is based in reality. Not one of the critics was able to point to any language in the bill that would in any way harm the Internet. Their accusations are simply not supported by any facts.

SOPA Section 103 (updated SOPA amendments) defines “DEDICATED TO THEFT OF U.S. PROPERTY” as an Internet site, or a portion thereof, that is a U.S.-directed site (marketed to US citizens) and is used by users within the United States (and has US customers) primarily designed or operated for the purpose of offering goods or services in a manner that engages in, enables, or facilitates a violation of:

or:

or:

  • the operator of the U.S.-directed site is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation of section 501 (copyright infringement) or 1201 (circumvention of DRM) of title 17, United States Code;

or:

  • the operator of the U.S.-directed site operates the U.S.-directed site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation of section 501 (copyright infringement)
  • 1201 of title 17 (circumvention of DRM) United States Code, as shown by clear expression or other affirmative steps taken to foster infringement.

Your site is “dedicated to theft of US property” if it does any of the following:

  • -is available and marketed to US visitors and sells content that infringes copyright, DRM removal tools, counterfeit goods, counterfeit goods that cause death or bodily harm, or replica goods

I think most people educated in technology can agree with the proceeding definitions with the exception of DRM removal and replicas. We have the right to use what we buy however we want. DRM not only punishes legitimate customers, but if publishers sell DRM free versions they reduce piracy. and we should have the right to buy items we know are fake (replicas) when they are not authentic, we just want to pay less for a “toy version.” If we only focus on selling of these, none of content that infringes copyright, counterfeit goods, and counterfeit goods that cause death or bodily harm, the following should not matter:

  • -is available and marketed to US visitors and posts content that infringes copyright, tells how to get DRM removal tools, tells where you can get counterfeit goods, tells where you can get counterfeit goods that cause death or bodily harm, tells where you can get replica goods
  • -is available and marketed to US visitors and allows users to post content that infringes copyright, tells where infringing contest is located, tells how to remove DRM, tells where you can get tools remove DRM, that tells where you can get counterfeit goods, tells where you can get counterfeit goods that cause death or bodily harm, and tells where you can get replica goods
  • -is available and marketed to US visitors and advertises content that infringes copyright, DRM removal tools, counterfeit goods, goods that cause death or bodily harm, and replica goods
  • -is available and marketed to US visitors and does not police user submitted content for talk about how to buy or receive content that infringes copyright, DRM removal tools, counterfeit goods, counterfeit goods that cause death or bodily harm, replica goods.

Any sites that is accused of the proceeding terms are subject to the following:

  • -your payment processors will be ordered to stop taking payments for goods and services you sell to your customers within 5 days of notice
  • -your advertisers will be ordered to stop showing ads including search ads within 5 days of notice
  • -your advertisers will be ordered to stop paying you within 5 days of notice

By allowing people to post and advertise illicit goods, we more easily find these seller and can go after them under existing laws.

Goals for those against SOPA regarding section 103:

Remove 1201 of title 17, United States Code; (circumvention of DRM) demo Sec 103 1, B, i, II. If you have rightfully purchased software, music, movies, or books, you should have the right to use it how you see fit. Otherwise, you may seek out versions that already have the DRM removed, usually for free, and then the authors will not be paid for their work.

Remove the phrase “in a manner that engages in, enables, or facilitates” from Section 103 1, B i. Talking about how or where to violate 501 title 17 or 1201 title 12 could be seen as facilitating, enabling, or engaging. But actually “offering goods or services” could be considered an offense. This will greatly limit the number of sites that fall under the dubious “dedicated” definition and will allow a greater number of innovative American startups and small businesses to operate at a lower cost and with less worry.

Remove section ii of Sec. 103 a, 1, B. This puts too much burden on service providers and will make operating innovative US business too expense. Unlike the imagined losses of rights holders (sales that never happened), innovative US small business and startups will have to spend real money censoring their users, violating the 1st Amendment along the way. A favorite GOP saying is “Guns don’t kill, people do.” Websites that follow DMCA takedown rules don’t violate section 501 (copyright infringement) or 1201 (circumvention of DRM) of title 17, United States Code, their users do.

Total rework b of section 103. It discourages foreigners from doing business and marketing goods and services to the American market. How does this square with the advocates for free trade and supposed champions of capitalism? And only 5 days to be contact? Legitimate foreign websites will only get 5 days to receive international mail? This is ridiculous.

These goals point out the worst flaws in SOPA.  The idea is to chip away at all problem areas until nothing is left.  But we need to be specific in our critique.

Update: much of this post was based on the October 2012 version of the bill. This post will soon reflect the updated version of the bill from December 12, 1011. You can see most of the differences here.

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