- The notice-and-termination procedure of Section 103(a) runs afoul of the “prior restraint” doctrine, because it delegates to a private party the power to suppress speech without prior notice and a judicial hearing. This provision of the bill would give complaining parties the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice accusing the site of being “dedicated to theft of U.S. property” – even if no court has actually found any infringement. The immunity provisions in the bill create an overwhelming incentive for advertisers and payment processors to comply with such a request immediately upon receipt. The 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, 380 U.S. 51, 58 (1965). “[P]rior restraints on speec hand publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976).
- To compound the problem, SOPA provides that a complaining party can file a noticealleging that it is harmed by the activities occurring on the site “or portion thereof .”Conceivably, an entire website containing tens of thousands of pages could be targeted if only a single page were accused of infringement. Such an approach would create severe practical problems for sites with substantial user-generated content, such as Facebook, Twitter, andYouTube, and for blogs that allow users to post videos, photos, and other materials.
And as for the differences between SOPA and existing law under the DMCA:
In effect, [SOPA] would impose the very monitoring obligation that existing law (in the form of the DMCA) was expressly designed to avoid. Until now, Congress has promised online services a safe harbor against copyright liability so long as they take down allegedly infringing material when notified of a violation. This bill would undo the statutory framework that has created the foundation for many web-based businesses.
[SOPA] also provides that the online advertiser or payment processor is required to alert the allegedly infringing site of the notice in “timely” fashion. The site is then permitted to send a counter-notice to the online advertiser or payment processor, but the bill does not require the advertiser or payment processor to restore service.
(My emphasis.) Prof. Tribe also makes the very good point that the DMCA is an example of a more narrowly tailored legislation which achieves substantially the same goals as the proposed bill, thereby further underscoring the constitutional problems with SOPA.
The entire memo can be found here.