Floyd Abrams is one of the nation's most famous First Amendment lawyers. He represented the New York Times in the case of New York Times v. Sullivan, which gave newspapers robust protections against libel lawsuits, and has been involved in numerous other prominent free speech cases over his half-century career. So the major Hollywood studios were understandably pleased when he wrote a letter on their behalf arguing that the Stop Online Piracy Act was not a threat to the First Amendment.

In a letter to Rep. Lamar Smith (R-TX), the lead sponsor of SOPA, Abrams did not mince words. "It is one thing to say that the Internet must be free," he wrote. "It is something else to say that it must be lawless." Abrams dismissed concerns that SOPA would squelch free speech and praised the legislation for its robust procedural protections.

Is Abrams right that SOPA's opponents are making much ado over nothing? We decided to get a second opinion from Wendy Seltzer. Seltzer is a former EFF attorney who created Chilling Effects, a clearinghouse for copyright takedown notices. She is currently a scholar at Yale law school.

"Strong, uniform, and constitutionally rooted?"

SOPA's critics have warned that the legislation lacks the procedural safeguards needed to protect free speech. Abrams emphatically disagrees.

"SOPA's procedural protections are so strong, uniform, and constitutionally rooted that it is no exaggeration to observe that complaints in this area seem not to really be with the bill, but with the federal rules of civil procedure itself," he wrote. He noted that injunctions against publication have always been an important part of copyright law, and portrayed SOPA as a logical extension of offline copyright law to the online context. And he argued that the legal procedures spelled out in SOPA are identical to those that govern traditional copyright injunctions.

But Seltzer told Ars that Abrams is dodging the central issue. "Copyright injunctions, while they are permitted, are typically directed at the direct infringer," like an author or book publisher, she said. In contrast, SOPA focuses on "parties that are far more peripherally connected to any alleged copyright infringement."

That's important because parties who are directly involved in publishing content have both the knowledge and the right incentives to scrutinize takedown notices and challenge those that are erroneous or over-reaching. A publisher, for example, will vigorously contest a court order to stop publishing one of its books if it believes it's based on a legal error.

In contrast, SOPA goes after search engines, DNS providers, and the operators of payment and advertising networks. "It's really misleading to compare them to the traditional publishers offline," Seltzer told Ars. "These providers may still be far removed from any knowledge of the activities going on, and haven't participated in them." Without direct involvement in publishing the content, they're much more likely to take a "no questions asked" posture in response to takedown requests.

Increasing indirectness

"Abrams doesn't address the strongest complaints about SOPA, which are increasing indirectness," Seltzer said. As previous efforts to crack down in copyright infringement have failed, copyright holders have lobbied for antipiracy efforts to cast a wider and wider net.

The DMCA gave copyright holders a new notice-and-takedown regime that focused on the direct infringers and their ISPs. When that failed to completely halt infringement, Congress passed the Pro IP Act, which gave the government new powers to shut down websites by ordering registrars to transfer the offending domain names.

In response, infringing content has increasingly shifted overseas, so now Big Content wants to expand the dragnet to cover parties like DNS providers and search engines that are only weakly connected to the alleged infringer. Not only is this unlikely to work, but Seltzer also believes that casting such a wide net creates a danger of collateral damage.

For example, earlier this year the government used a domain seizure to shut down 84,000 distinct websites that were sub-domains of the mooo.com domain. One of the subdomains was alleged to contain child pornography, but thousands of completely innocent websites were accidentally booted off the Web in the process. That likely would not have happened if the feds had approached the owners of the mooo.com domain rather than going straight to the site's registrar. Seltzer suggests SOPA would make this kind of mistake more likely and harder to correct.

So how do two experts on free speech and copyright reach such different conclusions? Seltzer is certainly not the only legal expert concerned about SOPA's effects on free speech. In July, dozens of law professors argued that the Protect IP Act (basically the Senate version of SOPA) was unconstitutional.

Of course, it's probably not a coincidence that the Abrams letter was sponsored by Hollywood. Seltzer suggested that there's a divergence of opinion between lawyers who mostly work with content companies on the one hand and lawyers who mostly work with technology companies on the other. "Spending more time with parties involved in the big entertainment industry and less time with the Googles and Facebooks and other kinds of creative enterprise" causes people to become more complacent about the First Amendment implications of tougher copyright enforcement.

On the other hand, Seltzer said, "more time spent with those producing new media, using search engines for link exchange and discovery, building new tools for creation and exchange might give a broader perspective."