Internet Regulation: Preventing Piracy vs. Protecting Speech


January 18, 2012 saw a unified movement among Internet corporate giants like Google and Wikipedia and We the People to kill two Congressional bills aimed at the prevention of online piracy.[1]  While protecting intellectual property rights is a Constitutional right,[2] protesters were voicing their opposition based largely on claims of censorship, a violation of the First Amendment’s guarantee of protected expression.[3] The House bill called Stop Online Piracy Act (SOPA)[4] and the Senate bill dubbed Protect I.P. Act (PIPA)[5] were created with the same goal: to protect intellectual property by preventing online piracy.  In the modern era of entertainment and information exchange, Internet downloads are a prime consumer source for music, movies, books, and video games.

Most lawmakers as well as the general public agree that protecting copyrights is a compelling State interest and it is of utmost importance that something is done to stem the tide of online piracy.  With the speed of technological advancements in the twenty-first century, these efforts to prevent piracy are always one step behind the pirates themselves.

The Copyright Clause’s aim “to promote the Progress of Science and useful Arts” by giving authors the rights to their works “for a limited time”[6] and the First Amendment’s mandate that “Congress shall make no law… abridging the freedom of speech…”[7] are at odds in this argument.  There are groups of people who believe that the First Amendment overturned the Copyright Clause upon ratification, saying that since the limited time phrase abridges free speech on its face, it is a form of censorship.  However, clearly neither the courts nor the legislation has ever agreed with this, and further laws such as the extension of copyright terms strengthen the support for copyright and free speech to coexist.

One of the biggest arguments against SOPA is the provisions that make the accuser the judge and jury.  SOPA Section 103 would effectively shut down any internet site accused of being “dedicated to the theft of U.S. property.”[8]  PIPA, which specifically targets “rogue websites operated and registered overseas,” expands its reach to those sites that “enable” these “rogue” foreign sites to operate, which would lead to  many non-infringing domestic sites being shut down in whole or in part .[9]  These issues are at the front of the public’s concerns over internet security measures.

While SOPA and PIPA have seen the most action both inside the halls of Congress, on the Internet, and among the general public, other legislation has been drafted in an attempt to modernize legal protection of intellectual property.  This means that even though SOPA and PIPA have essentially died a quick death, they left behind quite a few successors.  This issue is not going anywhere until something is passed into law, and it is important for everyone who uses the internet to be informed and stay apprised of what is going on, in the hope that one day a solution that protects intellectual property without censorship.

The leading alternative is currently the Online Protection and Enforcement of Digital Trade Act (OPEN), which approaches online protection the same way we protect our physical borders from allowing certain goods (like those that use child labor) into our market.[10]  According to the website, “OPEN secures two fundamental principles. First, Americans have a right to benefit from what they’ve created. And second, Americans have a right to an open Internet. Our duty is to protect these rights.”[11]  This bill not only has bipartisan support, but it is also being supported by online giants like “AOL, eBay, Facebook, Google, LinkedIn, Mozilla Twitter, Yahoo, and Zynga.”[12]

Whether OPEN is the proper solution or not, Congress seems to have learned one major lesson from the SOPA/PIPA protests: we value our freedom of speech.  Besides being able to read the full text of the bill online, the site is conveniently set up not only to allow, but to encourage site visitors to comment on specific sections of the bill.  So, take a look at OPEN’s text at  Read through the different sections, taking time to note that it specifically calls for an investigation into any accusations as well as an opportunity for the accused to be heard in certain cases.

Whatever the final decision is, hopefully it will be made for the People, by the People.  This is the goal, because we value our creative rights, but how creative can we be if we are censored?



[1]  Ned Potter, SOPA Blackout: Wikipedia, Google, Wired Protest ‘Internet Censorship’, ABC News (Jan. 18, 2012),

[2] US. Const. Art. I, § 8, Cl. 8.

[3] SOPA Blackout, supra note 1.

[4] Stop Online Piracy Act of 2011 (SOPA), H.R.3261.IH, 112th Cong., available at

[5] Protect Intellectual Property Act of 2011 (PIPA), S.968, 112th Cong., available at

[6] Supra note 2.

[7] U.S. Const. Amend. I

[8] SOPA, supra note 4, at Sec. 103.

[9] PIPA, supra note 5, at Sec. 3.

[10] OPEN: Online Protection & Enforcement of Digital Trade Act, Keep the Web Open, (last visited Feb. 15, 2012).

[11]  Id.

[12] Scott M. Fulton, III, SOPA Opponents Sign On to Wyden-Issa Alternative Piracy Bill, ReadWrite Enterprise (Dec. 13, 2011),

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