Could Congress be crippling the Internet?

Two pieces of legislation making their way through Congress could change the Internet completely, for site owners and users.

The bills, backed by major players like the MPAA and RIAA, are set to be passed before Christmas, against the objections of tech advocacy groups and major tech companies, including Google.

PROTECT IP and SOPA
The threat facing the Internet comes in the form of two bills -- the Senate version known as PROTECT IP (SB 968) and the House version of SOPA (Stop Online Piracy Act), HR 3261. Both pieces of legislation accomplish the same goal: Passing sweeping provisions that give governments and corporations the legal cover to take down sites for not doing enough to protect copyright holders.

So what does that mean, exactly? If a copyright holder believes a portion -- any portion -- of a website infringes on copyright, under PROTECT IP/SOPA, they can file a complaint and force payment processors, ad services and search engines to cut off a site, giving them five days to stop financial support. Even sites that are legally protected by the Digital Millennium Copyright Act's safe harbors would be vulnerable to economic consequences, making both bills function as end-runs around the protections established by DMCA.

Background: DMCA
The Digital Millennium Copyright Act, passed in 1998, is an important piece of legislation that helped allow the growth of the tech industry and the expansion of user-generated content online. How? By updating copyright laws, and providing legal protection for sites that host content provided by users. While companies are required to pull down infringing content uploaded by a user when notified, it's up to the copyright holder to request it. That means sites don't need to staff up to proactively monitor all content.

This and other protections afforded by DMCA are part of what allowed companies like Google, YouTube, Facebook and Twitter to flourish. Protected from excessive litigation, companies could grow and expand, supporting user-generated content and coming up with innovations that give us the online landscape we have today.

Who's at risk?
Both PROTECT IP and SOPA are theoretically focused on foreign websites, with the goal of preventing piracy. But U.S. sites could be vulnerable, as well; if any portion of a site is directed at the U.S. and either, a) allegedly enables copyright infringement or, b) allegedly should be taking steps to avoid infringement, then the site can be subject to these laws.

One key fact; unlike DMCA, PROTECT IP/SOPA apply to the entire site. This makes it much riskier for sites to allow content from users. Under DMCA, if someone uploads a piece of copyrighted content -- say, a video of your kid singing a pop song -- and the copyright holder files a notification of infringement, the site only has to remove that video. Under the new proposals, the copyright holder could instead force payment processors, ad services and search engines to choke off support for the entire site, not just the offending video. Also, even if the claim is disputed there's nothing requiring that those services have to be turned back on.

Free speech
One key difference in these new bills is the lack of recourse for sites. A site can file a counternotice if they aren't in violation, but it has to do this within five days. And there's no provision to force payment providers to restore service; a site could get hit with bogus claims and still wind up economically blacklisted.

Even with the protections in place, DMCA has been used by copyright holders to stifle research, eliminate legitimate cases of fair use and impede legitimate competition and innovation. The broader stripes painted by PROTECT IP/SOPA could extend this even further, giving sites reason to be cautious about hosting user-generated content -- or anything that could generate the ire of copyright holders and media companies.

Job creation
Another consequence of these bills is a chilling affect on economic growth and job creation. The tech industry has grown rapidly, and a number of the big players are sites that rely on user-generated content -- sites like Facebook, YouTube and Twitter. These types of sites would face the prospect needing to to be doing "enough" (What's enough? It isn't defined by either bill) to prevent infringement, a task that requires significant resources.

That type of monitoring may not seem like a substantial burden for large and thriving companies, such as Facebook or Google, but it could seriously hinder innovation and job creation for new companies. Even Google didn't start out as Google -- many of the powerhouse tech companies began with a few people and an idea. Smaller companies without the resources to monitor content or fight bogus claims will face a much more difficult path to growth.

Why it matters
The Internet is a powerful tool; the laws proposed by PROTECT IP and SOPA give an advantage to copyright holders and create an economic disincentive for sites to host user generated content, or anything that could raise the ire of media companies. The burden of policing content and fighting claims would disproportionately affect small start-ups and could stifle economic growth and lead to a drop in job creation in the tech industry.

In a severe recession, the last thing that Congress should be doing is passing legislation that could negatively impact job creation. More than that, PROTECT IP/SOPA could change the face of the Internet as we know it, at the expense of freedom of speech and expression.