SOPA Supporters’ Bizarrely Weak Argument That Domestic Companies Are Exempt

Wednesday, January 18, the Internet goes on strike. Hundreds of sites, from Wikipedia and Mozilla to Google, are protesting the copyright-censorship bills PIPA and SOPA. For more information, see here and here.

The bills’ supporters have strongly argued that American sites are exempt from the bills and that the bills only target foreign sites. They made this argument to Congressmen even when the original SOPA bill was introduced, before the “Manager’s Amendment,” even though the first SOPA bill clearly and explicitly targeted American sites. More recently, on MSNBC, the NBC General Counsel repeated that argument over and over. This morning, at the State of the Net Conference, the Chamber of Commerce made the same argument: only foreign sites will be affected.

Even if this were a saving grace, the bills’ opponents claim that the bills in fact would significantly burden American sites. I wrote a post here that many people point to as the “definitive” post explaining how PIPA and SOPA target American companies. I explained that the foreign domains of American sites (Google.ca, Amazon.co.uk) subject American companies to punishment. I explained that the anti-circumvention provisions subject Twitter, Facebook, Google, WordPress and other American sites to injunctions if people use them to explain how to get around the bills’ remedies. I also noted that those provisions would make illegal encryption technology, like State-department supported Tor, an anti-censorship tool.  And I explained that all of the remedies burden American companies, by requiring American search companies, service providers, ad networks, and payment processors to take certain steps when faced with a court order about a liable site.

So I feel compelled to respond to a bizarre counterargument I heard today. This morning, at a conference, the counsel for the Chamber of Commerce said that Amazon.co.uk or Google.ca would not be covered by the bill because the bill only applies to “US-directed sites” and those sites with foreign domains are directed to foreign audiences. Later in the day, I spoke with USA Today, and, after my chat, the reporter called back to tell me that the other side said I was wrong about Amazon and Google being subject to the bill because of foreign domains. The argument again: Google.ca and Amazon.co.uk (and others like them) are not “US-directed sites.”

So I’d like to say: this is your best argument? It’s astonishingly weak for two reasons.

First, the bills define US-directed site to mean almost any site that you can access in the US. PIPA does not have a definitive test, but it lets courts determine which sites are directed to the US based on several indicia, including whether the “Internet site has reasonable measures in place to prevent such goods and services from being accessed from or delivered to the United States.” (PIPA, page 48.) Meaning, if the site hasn’t blocked American users from accessing the site, then it’s US-directed. The whole point of the Internet, though, is that sites are globally available, and not blocked for particular countries. SOPA, on the House side, merely requires “minimum contacts” sufficient for personal jurisdiction, which is a very low standard that would touch most sites–as any law student would learn after reading the International Shoe case in the second week of Civil Procedure. (See SOPA, page 9).

Second, this argument is unconvincing because it suggests that the bills would cover zero sites in the whole world. If Amazon.co.uk and Google.ca are exempt from the bill, then so are ThePirateBay.co.uk or ThePirateBay.ca. The point of SOPA and PIPA, in theory, is to target foreign sites, who are defined based on having foreign domain names. So, the Chamber is saying, “Don’t worry Google.com won’t be subject to the bills because that’s not a foreign site.” Now it says, “Don’t worry, Google.ca won’t be subject to the bills because it’s not a US-directed site.” Does that mean neither MegaUpload.com or MegaUpload.ca is subject to the bill? By my count then, the bills don’t apply to any sites that have a domestic domain name nor do they apply to any sites that have a foreign domain name.

The Chamber is trying to convince us that the bills apply to zero websites and companies? They wouldn’t apply to MegaUpload.com or MegaUpload.ca, Google.com or  Google.ca, ThePirateBay.org or ThePirateBay.fr?

This doesn’t strike me as highly convincing.Why would studios and labels spend millions trying to pass a bill that affects zero websites and companies?

They wouldn’t.

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