Mark Lemley Explains How PIPA and SOPA Could Break the Internet

By TAP Staff Blogger

Posted on January 12, 2012

Piracy is a top concern for U.S. lawmakers. Two bills now pending in Congress, the PROTECT IP Act of 2011 (Protect IP) in the Senate and the Stop Online Piracy Act (SOPA) in the House, are expected to generate a lot of debate as they come up for votes this legislative session.
Professor Mark Lemley, Stanford University School of Law, and co-authors David S. Levine, and David G. Post examine the Protect IP and SOPA acts in their article, “Don’t Break the Internet” (Stanford Law Review, December 2011). They write, “Although the bills differ in certain respects, they share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system.”
In “Don’t Break the Internet,” Professor Lemley and his co-authors stress these key points:
  • Both bills “threatens the fundamental principle of interconnectivity that is at the very heart of the Internet. The Internet’s Domain Name System (DNS) is a foundational block upon which the Internet has been built and upon which its continued functioning critically depends…;”

  • Mandated court-ordered DNS filtering “could actually have an effect directly contrary to what its proponents intend: if large swaths of websites are cut out of the Internet addressing system, those sites … may well gravitate towards alternative, unregulated domain name addressing systems, making it even harder for governments to exercise their legitimate regulatory role in Internet activities;”

  • The bills violate “basic principles of due process by depriving persons of property without a fair hearing ..., and also constitutes an unconstitutional abridgement of the freedom of speech protected by the First Amendment.”
In closing, the authors emphasize that piracy of copyright works on the Internet is a very real problem. “…reasonable proposals to augment the ample array of enforcement powers already at the disposal of IP rights holders and law enforcement officials may serve the public interest. But the power to break the Internet shouldn’t be among them.”
Professor Mark Lemley is widely recognized as a preeminent scholar of intellectual property law. He is an accomplished litigator, having litigated cases before the U.S. Supreme Court, the California Supreme Court, and federal circuit courts, and a prolific writer with more than 100 published articles and six books. He is the Director of the Stanford Program in Law, Science & Technology, Director of the LLM Program in Law, Science & Technology, and Faculty Co-Director of the Transatlantic Technology Law Forum at Stanford University Law School.