SOPA and Protect IP: What Legal Nightmares Are Made of

Much debate has arisen over both SOPA, the Stop Online Piracy Act introduced in the House, and its corollary in the Senate, the PROTECT IP Act. Social networks have activated their users to contact members of Congress, prominent technology advocacy organizations have voiced their opposition and a call to "virtual arms" has been issued against the two pieces of legislation.

Aside from the "censorship" meme that has emerged around these bills, there is also the legal perspective in terms of implementation and interpretation if these measures were actually to pass and go into effect. These pieces of legislation create legal nightmares.

Our legal system is woefully behind in terms of keeping up with technology. There is no need to belabor this point, but there is a need to remind members of Congress what happens when they pass legislation dealing with hyper technical components and intellectual property, whether applicable to the Internet or freedom of speech and content ownership generally.

We end up with what legal nightmares are made of. We end up with cases parsing what "infringing activities" means. We end up with panicked clients, individuals and companies, contacting attorneys after their websites are affected by such pieces of legislation, normally people who intended no ill-will, malice or "infringing activities" per se. We end up with a handful of cases that will climb the appellate ranks and one that perhaps will see its day in the Supreme Court. Essentially, we end up waiting for lawyers and the courts to clean up the mess.

Whether you agree with the totality or components of past legislation like the Communications Decency Act (Section 230 and Safe Harbors particularly), the Copyright Term Extension Act of 1998, the Digital Millennium Copyright Act or legislation around issues like "Network Neutrality," they have proven how mistreatment of complex intellectual property and technology issues creates downstream problems for years to come.

As a practitioner, I have clients affected by these types of laws on a daily basis. I am sure other lawyers in this space would agree that while there are bad actors out there, many times we are stuck working within a framework that a member of Congress ten years ago was convinced was a great idea by some lobbyist and the money that agreement can buy. But on the whole, unless you are one of these major industry interests who have used some of this legislation to your advantage, the regulatory frameworks subject themselves to inoperability in many ways.

Congress is on the cusp of passing more legislation that serves only to muddy the waters, not enact any sort of justice or provide mechanisms for truly addressing a problem like online piracy. While it may seem "sexy" to address hot issues like online piracy (whether it's the money in politics talking or not), what the legal system will have to deal with in its aftermath is anything but.