For all the talk from some that SOPA was "dead," it appears it's alive and well and getting ready for its big re-entrance. Lamar Smith has just sent out a press release saying that he intends to resume the markup in February:
Stop Online Piracy Act Markup to Resume in February
Washington, D.C. - House Judiciary Committee Chairman Lamar Smith (R-Texas) today said that he expects the Committee to continue its markup of the Stop Online Piracy Act in February.
Chairman Smith: "To enact legislation that protects consumers, businesses and jobs from foreign thieves who steal America's intellectual property, we will continue to bring together industry representatives and Members to find ways to combat online piracy.
"Due to the Republican and Democratic retreats taking place over the next two weeks, markup of the Stop Online Piracy Act is expected to resume in February.
"I am committed to continuing to work with my colleagues in the House and Senate to send a bipartisan bill to the White House that saves American jobs and protects intellectual property."
There had been some talk that, due to Rep. Eric Cantor telling Rep. Darrell Issa that he would not take it to the floor, the bill was "dead." But, we knew all along it was only "delayed." Especially given the Senate's planned vote next week. This really is zombie legislation. It will not die... because some businesses that don't want to adapt want to make sure it never dies.
All the more reason to make your calls to Congress really count tomorrow.
You may recall that, a few months ago, the popular "library of the internet," The Internet Archive, was among the popular sites listed as a "rogue site" dedicated to "piracy," by ad giant GroupM, with inputs from Universal Music, Paramount Pictures and others. It seems that Brewster Kahle, the founder of the Archive, has recognized that SOPA and PIPA are important issues -- especially for a site that some apparently think is a rogue site. He's announced that the Internet Archive will go dark tomorrow, joining Reddit, Wikipedia and others. Tomorrow might be quite a strange day online.
We keep hearing how the "artists" that the entertainment industry gatekeepers say they're "protecting" are not at all pleased about SOPA and PIPA. For example, we've already seen Ashton Kutcher come out against the bill. The latest is that famed musician Peter Gabriel has said that his own website will go dark in protest tomorrow:
“This year is going to be a very crucial year for the fate of digital rights and freedoms on the internet. We strongly support the campaign against both the Protect IP Act and the Stop Online Piracy Act. For that reason our websites will be down from 05.00 GMT for 24 hours in support of the campaign.
It's been really sickening to see our usual critics (some of whom are admitted lobbyists in favor of the bills) insist that anyone against the bills is "in favor of piracy." Clearly, many people from all over the place -- including those who make their living in the "entertainment business" are against the bills. Or are we going to hear that Peter Gabriel just wants free stuff, too?
Following the news that Reddit, Wikipedia, and a bunch of other sites will be going dark to protest PIPA (and, to a lesser extent, SOPA) tomorrow, Google has now announced that it will use its home page to express its dislike of the bill. Google has not made clear exactly how it will protest. It won't "go dark" like those other sites, but it appears that it will post some sort of link, and will highlight ways for people to contact their elected officials in protest over the bill. With both Google and Wikipedia pushing people to call Congress... you might want to assume that Congress is going to get a few phone calls tomorrow.
A few months back, in going into great detail on everything wrong with PIPA & SOPA, I started it off by explaining that the whole effort was attacking the wrong problem. Here's what I wrote at the time:
That main issue, we're told over and over again, is "piracy" and specifically "rogue" websites. And, let's be clear: infringement is a problem. But the question is what kind of problem is it? Much of the evidence suggests that it's not an enforcement problem and it's not a legal problem. Decades of evidence from around the globe all show the same thing: making copyright law or enforcement stricter does not work. It does not decrease infringement at all -- and, quite frequently, leads to more infringement. That's because the reason that there's infringement in the first place is that consumers are being under-served. Historically, infringement has never been about "free," but about indicating where the business models have not kept up with the technology.
Thus, the real issue is that this is a business model problem. As we've seen over and over and over again, those who embrace what the internet enables, have found themselves to be much better off than they were before. They're able to build up larger fanbases, and to rely on various new platforms and services to make more money.
And, as we've seen with near perfect consistency, the best way, by far, to decrease infringement is to offer awesome new services that are convenient and useful. This doesn't mean just offering any old service -- and it certainly doesn't mean trying to limit what users can do with those services. And, most importantly, it doesn't mean treating consumers like they were criminals and "pirates." It means constantly improving the consumer experience. When that consumer experience is great, then people switch in droves. You can, absolutely, compete with free, and many do so. If more were able to without restriction, infringement would decrease. If you look at the two largest contributors to holding back "piracy" lately, it's been Netflix and Spotify. Those two services alone have been orders of magnitude more successful in decreasing infringement than any new copyright law. Because they compete by being more convenient and a better experience than infringement.
Tim O'Reilly (who you should know already), who makes his living in the content business, but has always been against these kinds of ridiculous laws, has come out with a great, detailed discussion of the same issue, concerning how the federal government still has mis-defined the problem. He's doing this in response to the White House's statement on Saturday, and makes some important points:
I found myself profoundly disturbed by something that seems to me to go to the root of the problem in Washington: the failure to correctly diagnose the problem we are trying to solve, but instead to accept, seemingly uncritically, the claims of various interest groups. The offending paragraph is as follows:
"Let us be clear—online piracy is a real problem that harms the American economy, and threatens jobs for significant numbers of middle class workers and hurts some of our nation's most creative and innovative companies and entrepreneurs. It harms everyone from struggling artists to production crews, and from startup social media companies to large movie studios. While we are strongly committed to the vigorous enforcement of intellectual property rights, existing tools are not strong enough to root out the worst online pirates beyond our borders."
In the entire discussion, I've seen no discussion of credible evidence of this economic harm. There's no question in my mind that piracy exists, that people around the world are enjoying creative content without paying for it, and even that some criminals are profiting by redistributing it. But is there actual economic harm?
From there, he talks about his own experience running a content business, and how he's learned that any actual infringement tends to benefit him in the long run. That's because, like I explained above, if you put in place a smart business model (something Tim is good at) piracy is no problem at all. O'Reilly is fond of the phrase that "obscurity is a bigger problem than piracy" and he's completely right:
In my experience at O'Reilly, the losses due to piracy are far outweighed by the benefits of the free flow of information, which makes the world richer, and develops new markets for legitimate content. Most of the people who are downloading unauthorized copies of O'Reilly books would never have paid us for them anyway; meanwhile, hundreds of thousands of others are buying content from us, many of them in countries that we were never able to do business with when our products were not available in digital form.
History shows us, again and again, that frontiers are lawless places, but that as they get richer and more settled, they join in the rule of law. American publishing, now the largest publishing industry in the world, began with piracy. (I have a post coming on that subject on Monday.)
From there, he starts talking about what the White House should be doing, and it's simple: look for ways to allow innovation to flourish -- not create protectionist plans for industries who aren't keeping up with the times:
Congress (and the White House) need to spend time thinking hard about how best to grow our economy - and that means being careful not to close off the frontier, or to harm those trying to settle it, in order to protect those who want to remain safe at home. British publishers could have come to America in the 19th century; they chose not to, and as a result, we grew our own indigenous publishing industry, which relied at first, in no small part, on pirating British and European works.
If the goal is really to support jobs and the American economy, internet "protectionism" is not the way to do it.
It is said (though I've not found the source) that Einstein once remarked that if given 60 minutes to save the world, he would spend 55 of them defining the problem. And defining the problem means collecting and studying real evidence, not the overblown claims of an industry that has fought the introduction of every new technology that has turned out, in the end, to grow their business rather than threaten it.
He also has a final suggestion that may seem unrelated, but is actually directly at issue:
If Congress and the White House really want to fight pirates who are hurting the economy, they should be working to rein in patent trolls. There, the evidence of economic harm is clear, in multi-billion dollar transfers of wealth from companies building real products to those who have learned how to work the patent system while producing no value for consumers.
But, of course, that will never happen. That's because a totally useless "patent reform bill" passed a few months ago, and Congress and the President now consider that problem "done." And that's even though nothing in the bill actually addressed the issue of patent trolls, which has been a huge problem, and has hit many of the new businesses that are needed to build the innovations that will help the old guard in the content industry adapt. Hell, just look at Spotify. Days after being introduced in the US... it was sued for infringement.
So, the real response to the White House should be that it's time to stop making this a faith-based debate. Let's focus on the actual evidence, and define what the actual problem is. Because if it's (as all the evidence shows) a business model problem, not a legal or enforcement problem, pushing forth new regulation is not going to be the answer.
On October 26th, I was flying from San Francisco to Washington DC to meet with folks in the House of Representatives to explain why they should be careful about making the same mistakes as the Senate with its anti-piracy bill, PROTECT IP (PIPA). We had been assured by Rep. Bob Goodlatte that Congress had heard the myriad complaints about PIPA and that the House version would take them into account. Instead, as the plane I was on flew over the Rocky Mountains, I started getting a flood of emails from people sending me the first release of the House's version of the bill, now known as SOPA (originally, the E-PARASITE bill, a name they dropped immediately when everyone started mocking it). Thanks to the wonderful innovation of WiFi-in-the-sky, I was able to sit in my cramped seat, read the bill, and write up my horrified post explaining just how much worse SOPA was than PIPA (an already disastrous bill).
The next day, October 27th, a small group of entrepreneurs, investors, innovators and creators spent the day meeting with members of Congress to express our concerns about the bill (which we'd just seen the afternoon before), as well as the whole approach to the crafting of both bills. The one thing we heard over and over again that day: "well this is the first time we've heard anything about this from the internet community."
I think it's safe to say that's no longer the case.
As I type this, I'm taking that same flight, preparing for my debate tomorrow over these bills against an MPAA representative and a US Chamber of Commerce representative, I'm sitting in that same cramped seat (actually, I think I'm on the opposite side of the plane), and thinking just how far we've come in just three and a half months.
Make no mistake: when the Senate introduced PIPA in May, it was widely assumed that this bill, and any companion bill would sail through Congress easily. Sure, some "tech-friendly" officials may express some concerns, but, as one lobbyist told me directly, "no one takes you people seriously anyway." It was this kind of hubris that we saw throughout the year with these bills. We were told repeatedly to shut up and take it, because the bills were going to pass, Obama would sign them, and piracy would magically disappear.
Instead, a funny thing happened on the way to the death of the internet: the internet woke up. While folks online may be political, it's not often that they truly get activated over internet-related issues. But in an era of bottom-up movements facilitated online, the timing was absolutely right for the massive groundswell of support from all corners of the internet to suddenly speak out in near unison to say of these bills: DO NOT WANT.
Still more to do:
At this point, it's impossible to deny that we, as a group, have had an impact. Contrary to the claims of some of the bill's supporters, we showed that this isn't just a "Google" issue. This is an internet issue. And we care about the internet and we care about innovation, and we're not going to take it lightly when elected officials, who admit they don't understand the technology, come along to say they're going to mess with it, just because their biggest campaign donors don't want to adapt to these wonderful new innovations.
But, not everyone in Congress has an understanding of what's happening online. Even with Reps. and Senators backing away from the bills, and asking leadership to slow things down... and even with Rep. Smith and Senator Leahy trying to "delay" the DNS implementation in order to get the bills passed... some in Congress still think that the outcry is minor or limited or that it's all Google.
That's why Harry Reid intends to move forward with the bill, pretending that the complaints only come from Google and Facebook... and that they're minor and easily fixed with a couple of amendments. I believe he's misjudged the internet, just as many others in Congress have misjudged the internet over the last few months. The people speaking out are not just "Google and Facebook," and they're not just speaking out for the hell of it. They're seriously pissed off at Congress for even thinking of going down this path in the first place, and simply killing the bills is unlikely to get the people online back on their side.
But there's a bigger point in the "more to do" section of this post. This isn't about one bill. This isn't about one issue. This is about an entire process. This is about the public -- not the big corporations -- finally saying "enough is enough" and making Congress recognize that crony capitalism, where subsidies and protectionism are doled out willy nilly to favorite campaign contributors, is not acceptable to the people they're supposed to represent.
This is about recognizing that the internet and the massive amount new innovation and services -- and the worldwide ability to communicate with others -- is a game changing innovation for everyone. And we're going to work damn hard to make sure that it remains open and free.
But, to do that right, this is going to take much more than stopping one bill. This is going to take prolonged effort. This is going to take an ongoing effort to make it clear that no elected official can ever again feel comfortable bragging that they don't understand the internet, as they seek to regulate it. This is about making it 100% crystal clear to those who seek to clamp down on the true engine of free expression -- the internet -- that we, the people, aren't going to be fooled with bogus claims and bogus stats in an effort to limit this wonderful platform.
This isn't over yet -- not by a long shot. But just look at how far we've come in just three and a half months, and think what we'll do in the next few months -- and years -- ahead. These bills tried to kill the "internet as we know it." But, in some ways, these bills helped birth a new kind of internet: one that doesn't let Congress screw it up without taking action.
Alexis Ohanion, founder of Reddit (and Hipmunk and Breadpig), is kicking off a neat campaign to send condolence cards to Senators, mourning the "death of the internet" in response to the effort to move forward with PIPA. In a video he put together, he questions why our elected officials, who admit they don't understand the technology, seem to have no problem at all moving forward with a bill regulating that same technology -- and shows the condolence card he's sending to his own Senators in New York.
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He separately notes how odd it is that in this era of political gridlock, where almost nothing can get done in Congress, so many in Congress jump to push through bad legislation they don't understand -- written by the entertainment industry -- while ignoring the many real problems this country faces...
Because I can already hear some of the SOPA/PIPA supporters out there revving up the "but it doesn't kill the internet!" cries, let's dig into that issue. No one is saying that it kills off the entire internet, so that it goes away. What we've been saying all along is that it kills the established legal framework under which the internet has grown and thrived for decades. That's a big deal. Multiple studies have shown that the protection from secondary liability is a large part of what enabled the internet to grow the way it did, and to build the kinds of innovative new services that have shown up over the years. Taking that away doesn't mean that "the internet" goes away -- but it does mean that the key protections on which the internet were built are put at significant risk or, in some cases, wiped out. That's pretty scary if you want to see new internet services built up and to see existing ones grow. Under such conditions, sympathy cards seem perfectly reasonable.
Last week, we noted that Jimmy Wales was in favor of a blacking out Wikipedia on Wednesday in protest of PIPA, joining with Reddit and lots of other sites, but that the community need to weigh in quickly. It appears they've now done so, as Wales is telling students to do their homework early, because the site is a goner for Wednesday:
Student warning!Do your homework early.Wikipedia protesting bad law on Wednesday! #sopa
In fact, it appears they're going even further than Reddit, who is going down for 12 hours. All English-language pages on Wikipedia will go dark for 24 hours -- starting at midnight DC time on Wednesday. For what it's worth, I've been told by multiple Congressional staffers that Wikipedia is a tool they all rely on pretty much every day -- so expect this to get some attention. The site will also be replaced with an action alert, asking people to call and write Congress -- and Jimmy says his goal is to "melt the phone lines." Considering how much usage Wikipedia gets, that's entirely possible.
This is a big move, and it's great to see Jimmy and the community willing to take a stand like this. Jimmy is also tweeting up a storm about why this is so important. He's also responding to false claims that the bills are "dead," by noting that SOPA (1) may rise again and (2) that PIPA is still alive and well.
Either way, come Wednesday, I'm curious if Congress is still going to be claiming that it's just a "small minority" of people who dislike these bills.
Chris Hayes, over on MSNBC, decided to be the first to seriously break the mainstream cable news' boycott over SOPA/PIPA with a big debate on the bill -- mainly between NBCUniversal's top lawyer, Rick Cotton, and Reddit co-founder Alexis Ohanian. Chris's opening discussion is quite good, and suggests he's certainly sympathetic to all of us who are vehemently opposed to the bill. You can watch it below:
Alexis does an excellent job in the brief time he's given to speak (though Cotton gets probably four times the amount of time to speak), but what I wanted to focus on, are the lies of Rick Cotton, because it's simply despicable. He flat-out lies about the bills -- and, even worse -- does so in a manner that implies that it's everyone else who's lying about the bills. He kicks it off by insisting that the bills only apply to sites that are "wholesale devoted to theft." That's simply not true. He actually uses the word "wholesale" maybe two dozen times (at least). The text of PIPA -- the key bill at this point -- says that a site is considered "dedicated to infringing activities" if it "has no significant use other than engaging in, enabling, or facilitating" infringement. That does not mean that the site is "wholesale devoted to theft." Under this definition, of course, a site like a YouTube (if it were based on a foreign domain) would be questionable, given that it has no significant use other than enabling infringement. That doesn't mean that it's always used to infringe, but it's main use absolutely enables or facilitates infringement. Cotton may want to believe the language says otherwise, but it does not.
Second, Cotton gets pretty angry about the "disinformation" around the bills, and insists that the bills "would not effect a single site in the United States." This is false. As we've explained repeatedly, while the targets of the legislation are sites with foreign domain names, the entire remedies section is about US sites -- meaning that they will have significant compliance costs, and potential liability under these laws. Furthermore, the anti-circumvention provisions of the bill are not limited to just foreign sites. Alexis pushed back on the anti-circumvention point, and Cotton claimed that Alexis was "simply wrong." But he's not. Cotton is "simply wrong" here again. Cotton claims that we should debate what's in the bill, and he should try reading the bill. In fact, Alexis has said that Cotton admitted after they were off the air that he was correct that the anti-circumvention provisions were not limited to just foreign sites. But that doesn't do any good for those who saw the segment but don't know the specifics.
Next, he claims it's totally wrong that a small amount of "legitimate activity would be threatened by this legislation." To be fair, Cotton and his buddies already got the power to take down tons of "legitimate activity" with the last copyright expansion bill they passed a few years ago, the ProIP bill. Either way, he's still wrong. Tons of legitimate content can and will be put at risk under these bills. We've already seen that companies -- including NBCUniversal -- have wrongly declared publicly that certain sites are "rogue" sites, despite the fact that they have tons of legitimate content. If you believe that Cotton and NBCUniversal will suddenly get better at finding sites that really only deal in infringement going forward, you haven't paid much attention over the last decade or so. Under existing law, we're already seeing legitimate websites taken down, and legitimate speech infringed upon. Hell, even the one prominent legal scholar who agrees with Cotton, Floyd Abrams, has admitted that protected speech would be censored under the bill.
Next, Cotton claims that the internet is "lawless" and that this whole thing is really a policy debate about how we finally put laws on the internet. This is, to put it mildly, insane. As Alexis points out in response, there are tons of laws that apply to the internet, and directly apply and are used every day to deal with infringing activity. To pretend otherwise is ridiculous. In fact, as Alexis notes, the DMCA is regularly abused by copyright holders to go way beyond what the law is supposed to allow.
Towards the end, Cotton claims that when a court in the Netherlands ordered The Pirate Bay blocked in that country, traffic to the site dropped by 80%. That's a flat out lie. I mean, ridiculously false. First off, considering that the legal fight over that has continued for years, and the court only ordered ISPs in the Netherlands to actually block The Pirate Bay... five days ago -- and gave them 10 days to comply -- I'm curious as to how he knows how much impact such a court order has had (er... will have) on traffic to The Pirate Bay. Separately, in every other place that has ordered such a block, traffic to TPB has actually gone up, not down, because the court order to block tends to give the site more attention. Just to make sure, I asked someone in the Netherlands if TPB was blocked for them, and he sent me the following screenshot showing that it's totally accessible (though, they're warning about the new ruling!). Either way, Cotton was flat out, 100%, totally lying about these "stats" from the Netherlands. No such block has occurred.
All in all, this is the same duplicity that we've been seeing from SOPA/PIPA supporters for the last few months. They attack those of us with facts on our side as spreading disinformation, but when you look at the details you realize that it is, in fact, they who are flat out "wholesale" lying. Rick Cotton should be ashamed, and NBCUniversal should admit to its errors. Chris Hayes promises to cover the topic in more detail again in the future, and he should challenge Cotton on the multiple false statements he made.
While the lobbyists favoring SOPA/PIPA have decided that the talking point on the White House's statement opposing SOPA/PIPA as written really means that the bills, as they are, are great, it appears that no one sent Rupert Murdoch the talking points. Murdoch, who has been personally lobbying Congress in support of the bills, took to his relatively new Twitter account to lash out at the President:
So Obama has thrown in his lot withSilicon Valley paymasters who threaten allsoftware creators with piracy, plain thievery. -
Of course, almost nothing in those statements is true. First, it's well documented that Hollywood spends ridiculously more money lobbying than the likes of Google. Second, Silicon Valley is the heart of software development. Kind of bizarre for him to claim that Obama's "paymasters" from Silicon Valley want to... um... destroy Silicon Valley. Third, nothing in the White House's statement said that they were solely supporting the other side's view here. They simply expressed specific concerns with the existing bill. Considering that they specifically rejected parts of the bill that would lead to censorship, excess private litigation and problems for online security... is Rupert Murdoch really coming out in favor of censorship, excessive private litigation and a broken online security system? Really, Rupe?
Next, when it comes to streaming films, it's true that Google puts advertising around certain videos on YouTube. However, it's not all videos, and their system (quite famously) allows the actual copyright holder to make the money from those ads, leading to a rather lucrative new revenue stream for many content creators. Furthermore, for years, people have mocked YouTube for losing a ton of money, so it's not like this is a particularly lucrative part of Google's business. As for filmmaking being "risky as hell," so what? Lots of things are risky, but most of us don't think that the government should censor free speech, break internet security and create massive undue litigation... just to make Rupert's investments less risky. That he seems to think that's a reasonable tradeoff shows just how Rupert Murdoch views the government: as a tool to funnel extra money to himself. Furthermore, his claims that it will lead to "less" are just laughable as well. The number of movies made per year has more than tripled in the past fifteen years, just as online piracy ramped up. Also, Nigeria, China and India -- three countries known to have more infringement than the US -- all built up huge film businesses over the last few years, despite all the infringement.
After thinking about it for a few hours, Murdoch went right back to it:
Seems like universal anger with Optus from all sorts of normal supporters.Maybe backing pirates a rare miscalculation by friend Axelrod.
He later admits that he had a "damn you autocorrect" moment in that first one. "Optus" was supposed to be POTUS, but his iPad "changed it." First of all, we haven't seen any "anger" towards Obama over this -- other than from Murdoch. Quite the opposite. We've seen widespread agreement (and surprise!) that the White House would actually dare speak out against Hollywood on an issue. And, once again, it's insulting and ridiculous (but typical of the disdain the Hollywood old guard has for the rest of the world) to claim that concern over censorship, excess litigation and online security problems means "backing piracy." As for the stats, it's nice to see him use the 2.2 million jobs number, rather than the 19 million jobs that is usually thrown around (someone in Hollywood really needs to get Rupe the talking points memo on this one), but even that is misleading.
[The] 2.2 million jobs figure, however, exaggerates Hollywood's contribution to the American economy. According to supplemental data provided to HuffPost by MPAA, only 272,000 people work for movie studios and television companies. The lobby group claims that an additional 430,000 people work in related "distribution" jobs dependent on Hollywood, legal web streamers like Netflix, the few remaining video store clerks and cashiers checking out DVD purchases.
But the vast majority of the jobs Dodd & Co. claim are threatened by online piracy are only peripherally related to the entertainment business. MPAA takes credit for nearly 1.6 million jobs at florists, catering companies, hardware stores and other industries that work with major movie studios, assuming that these jobs could not ultimately be out of a job without Hollywood help.
Yeah. 1.6 million of those jobs are not actually in the entertainment industry at all. Rupe, before you tweet, perhaps try learning the details of the "facts" you're about to spew so you look a little less ridiculous next time.
