Legal expert says online piracy bill is unconstitutional

Laurence Tribe, a constitutional law expert at Harvard Law School, argues the Stop Online Piracy Act (SOPA) violates the First Amendment in a memo sent to members of Congress on Thursday.

The bill would empower the Justice Department and copyright holders to demand that search engines, Internet providers and payment processors cut ties with websites "dedicated" to copyright infringement.

Tribe argues the bill amounts to illegal "prior restraint" because it would suppress speech without a judicial hearing.

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Additionally, the law's definition of a rogue website is unconstitutionally vague, Tribe writes. 

"Conceivably, an entire website containing tens of thousands of pages could be targeted if only a single page were accused of infringement," Tribe writes. "Such an approach would create severe practical problems for sites with substantial user-generated content, such as Facebook, Twitter, and YouTube, and for blogs that allow users to post videos, photos, and other materials."

He argues SOPA undermines the Digital Millennium Copyright Act of 1998, which protected websites from being held responsible for the actions of their users.  

The bill would "effectively require sites actively to police themselves to ensure that infringement does not occur," he writes.

Tribe concludes the result is that the law would chill protected and lawful speech. 

"The threat of such a cutoff would deter Internet companies from adopting innovative approaches to hosting and linking to third party content and from exploring new kinds of communication," he writes.

In a footnote, Tribe acknowledges that he was hired by the Consumer Electronics Association, which is lobbying against SOPA, but he adds, "The views expressed in this paper represent my own views as a scholar and student of the Constitution." 

A spokeswoman for the House Judiciary Committee Republicans pointed to a competing legal analysis by constitutional law expert Floyd Abrams.

In that paper, Abrams notes that the First Amendment does not protect copyright infringement and argues that the bill's protections are sufficient to not cause a chilling effect on protected speech.

"The Internet neither creates nor exists in a law-free zone, and copyright violations on the Internet are no more protected than they are elsewhere," Abrams writes.

He argues that SOPA's procedures for protecting legitimate speech are so strong "that complaints in this area seem not to really be with the bill, but with the Federal Rules of Civil Procedure itself, which govern all litigants in U.S. federal courts."

Abrams wrote the analysis on behalf of a coalition of movie and television associations which support the legislation.