the U.S. to seek court orders requiring foreign Web sites to cease providing access to infringing copies of U.S. works. Because “rogue” Web sites seemed unlikely to obey a U.S. court order, SOPA further empowered the AG to serve these orders on U.S. Internet intermediaries who would then have been required to take “ technically feasible and reasonable measures” to block their users from accessing the foreign Web sites. This included “measures designed to prevent the domain name of the foreign infringing site…from resolving to that domain name’s Internet protocol address.” These measures needed to be undertaken “as expeditiously as possible,” but no later than five days after receipt of the orders.

Upon receiving a copy of a rogue-Web site order, search engines would have been required to block access to the sites even if users were searching for items that would otherwise have brought the sites to their attention. Internet service providers would have had to ensure that users who typed certain URLs (for example, http://thepiratebay. se) into their browsers could not reach those sites. Payment providers (such as Visa or Mastercard) would have had to suspend services for completing transactions. Internet advertising services would have had to discontinue serving ads and providing or receiving funds for advertising at these sites.

Those who failed to comply with the DNS blocking obligations could expect the AG to sue them. The AG was also empowered to sue those who provided a service designed to circumvent this DNS blocking (for example,

the safe harbors
have been an
important factor in
the extraordinary
growth of the
internet economy.

a plug-in or directory that mapped blocked URLs with numerical DNS representations).

Frustrated by the weak enforcement of intellectual property rights (IPRs) abroad, the U.S. entertainment industry urged Congress to adopt SOPA as the best way to impede online infringements. Foreign rogue Web sites might still be out there, but if U.S.-based Internet intermediaries blocked access to the sites, users would not be able to access infringing materials through U.S. intermediaries.

Because ISPs in the U.S. and abroad have no duty to monitor what users do on their sites, it is easy for sites to become hosts of large volumes of infringing materials. Some operators seemingly turn a blind eye to infringement, some encourage posting of infringing content, while other sites may just be misused by infringers. By cutting off sources of transactional and advertising revenues, the hope was to discourage these sites from continuing to operate.

 

Challenging u.s.-Directed Web sites SOPA would also have given holders of U.S. intellectual property rights (IPRs) power to challenge “U.S.-directed sites dedicated to the theft of U.S. property.” At first blush, it might seem that reasonable persons should support a law crafted to target such sites. But “ dedicated to the theft of U.S. property” was defined in a troublingly ambiguous and overbroad way. It included operators of sites that were taking “ deliberate actions to avoid confirming a high probability of the use of [that] site to carry out acts” in violation of copyright or anti-circumvention rules. Also included was any site that was “primarily designed or operated for the purpose of, ha[d] only a limited use other than, or [wa]s marketed by its operator or another acting in concert with that operator in, offering goods or services in a manner that engages in, enables, or facilitates” violations of copyright or anti-circumvention laws.

SOPA would have enabled firms
who believed themselves to be harmed
by one of these sites to send letters to
payment providers and/or to Internet
advertising services to demand that
they cease providing services to sites
alleged to be “dedicated to the theft of
U.S. property” shortly after receiving
such letters.

soPa’s Flaws

The main problems with SOPA insofar as it would have employed DNS blocking to impede access to foreign rogue Web sites were, first, that it would undermine the security and stability of the Internet as a platform for communication and commerce and second, that it would be ineffective.

SOPA is fundamentally inconsistent with DNSSEC (DNS Security Extensions), a protocol developed to avoid abusive redirections of Internet traffic, whether by criminals, autocratic governments, or other wrongdoers. Computer security experts spent more than a decade developing DNSSEC, which is now being implemented all over the world, including by U.S. government agencies.

As the USACM Public Policy Com-
mittee observed in a letter sent to mem-
bers of Congress, DNSSEC Web site
operators cannot reliably block offend-
ing sites “and so may be faced with the
choice of abandoning DNSSEC or being
in violation of issued court orders.”
This letter explained why DNS
blocking would be ineffective. “[I]t is
effectively impossible to bar access to
alternate DNS servers around the globe
because there are millions of them on
the Internet.” Use of those servers “al-
lows for bypassing of DNS blocking.”
Circumvention of DNS blocking is,
moreover, “technically simple and uni-