According to legal and technical experts, there are plenty of reasons the Stop Online Privacy Act and Protect IP Act won't protect the rights of copyright owners in the way their Congressional sponsors and corporate backers claim.
The clearest and (once someone points it out) most obvious is this:
SOPA and PIPA include provision to enforce copyrights and "stop online piracy" by requiring that offending web sites, effectively, disappear from the Internet.
They don't do anything to stop any site from operating, stop users from going to sites offering illegal downloads or create ways the U.S. justice system can prosecute owners of foreign sites offering illegal downloads of copyrighted content, according to Julian Sanchez, research fellow at the conservative Cato Institute and former Washington editor for ArsTechnica.
How can SOPA and PIPA be so draconian if they don't do anything?
Supporters and opponents disagree on a lot about the bills.
They disagree about the process of imposing punitive measures and whether it's appropriate to punish a whole web site for violations from individual users, but not about what that punishment is: The ability to make a web site disappear from the point of view of U.S. Internet users.
The original version of SOPA allowed the Dept. of Justice to order search engines and ISPs to delete DNS entries and search results pointing to banned sites – based on complaints from copyright owners and a process that did not allow those accused to defend themselves – making it impossible for U.S. Internet users to get to the sites.
The updated version of SOPA, as well as PIPA, put the power to penalize sites in the hands of a judge and eliminate language that forces Google, Bing and other search engines to comply.
Under new versions of the bills, even sites cited by a court would be punished only by orders requiring ISPs to delete pointers in their DNS databases, so any user trying to visit ThePirateBay.org, for example, would get an error saying the web site could not be found.
SOPA/PIPA's superpower is to make Pirate Bay invisible, unless you know how to find it
Pirate Bay would not be gone, however. It would stay right where it is and continue to operate just as it did before.
U.S. agencies don't have the authority to shut down web sites in other countries, arrest the people that run them or require that they provide lists of users who can be punished within the U.S.
So even the most punitive versions of both SOPA and PIPA would make banned sites invisible to many Internet users in the U.S., but wouldn't do anything to actually stop or slow down the illegal copying and distribution of content, according to Sanchez and other experts.
"If the proposed solution just won’t work, after all, why bother quibbling about the magnitude of the problem?" Sanchez asked in an analysis posted Jan. 3.
Making Pirate Bay invisible to U.S. users may shrink the potential customer base for torrent and magnet networks, but only by cutting out users who can't figure out how to use browser plug-ins or proxy sites to get around government-controlled barriers such as the Great Firewall of China.
It doesn't do anything about users who record movies or music as they stream from iTunes, YouTube or other legal sites, either.
So why even argue about how unconstitutional either bill is or what minor changes would make either one less unconstitutional?
If RIAA, MPAA and other organizations supporting SOPA and PIPA are honest about their goal (stopping content piracy), it shouldn't require Constitutional crises, debates in both houses of Congress, Internet blackouts and an acrimonious public fight over whether to pass either SOPA or PIPA in anything like their current forms.
If they were honest, both RIAA and MPAA – the primary backers and beneficiaries of both bills – would just admit neither SOPA nor PIPA would do the job it's supposed to do, ask that they be withdrawn and go home to work on other ideas that might be more effective.
Stay tuned to see if that happens. It will tell you a lot about how honest RIAA, MPAA and other censorship backers really are and whether they understand copyright issues on the Internet well enough to contribute anything but bile to the effort to address it.
Read more of Kevin Fogarty's CoreIT blog and follow the latest IT news at ITworld. Follow Kevin on Twitter at @KevinFogarty. For the latest IT news, analysis and how-tos, follow ITworld on Twitter and Facebook.