PIPA and SOPA: Compare and Contrast

January 5, 2012 , , , ,

I keep getting asked if the PROTECT IP Act (PIPA) is better or worse than the Stop Online Piracy Act (SOPA). Even without addressing how misleading relative terms like “better” can be, it’s impossible to give an unequivocal answer because of several significant differences between the details of the bills, even if they both do many of the same things (and do them badly).

So while both bills try to curb online infringement by tampering with the domain name system (DNS); allow private actors to de-fund targeted sites, and grant blanket immunity to certain intermediaries for taking copyright law into their own hands, each has its own peculiarities that cause additional problems.

Is PIPA worse?

PIPA features a particularly expansive definition of what constitutes a “site dedicated to infringing activities,” which can include merely “enabling or facilitating” infringement. How broad this is is uncertain—is merely providing hosting to an infringer enabling infringement? What about indexing links to an infringing site? This is the sort of language that can easily reach too far—we’ve seen lawsuits and premised on some pretty thin ice so far.

Another huge hole in PIPA is that it allows court orders to issue against any “information location tools” as defined in the DMCA. That sounds a lot like the search engine-directed provisions in SOPA, but the DMCA defines “information location tools” very broadly—to the point where it could easily encompass a simple link. This could subject nearly the whole web to court orders issued through PIPA.

Is SOPA worse?

Even after the manager’s amendment, SOPA retains a lot of excesses, pulling in a lot of other types of issues into one big bill—like also including the complexities of trade secret violations, and expanding criminal penalties for streaming (which certainly seemed to upset Justin Bieber, at least).

It also grants blanket immunity to a much wider range of entities who voluntarily decide to cut off suspected infringers. While PIPA restricts immunity to ad networks and payment processors, SOPA adds to this list any ISP, registry, registrar, search engine, bank, or even any advertiser. This puts a large number of potentially powerful intermediaries in an even more powerful position. If Comcast decides it’s tired of, say, taking bandwidth and audience away from cable programming, it can argue that YouTube is “dedicated to infringing activities” and not face any consequences under net neutrality or competition laws. If Google gets upset that isn’t playing ball with Google Shopping and decides to delist it, it’s got a plausible way to escape any lawsuits (to say nothing of unwanted attention from the FTC or the DoJ) for acting anticompetitively.

So to ask whether SOPA is better than PIPA, or vice versa, is a question without a clear answer—a comparison of rotten apples to rotten oranges. They’re different enough to defy an up-or-down value comparison, though at base they are similar enough, and similarly bad.