Why Adversarial Hearings Are Important: Rulings Change When The Other Side Is Heard

from the let-them-be-heard dept

We already wrote about the judge's ruling saying that Chitika was not liable for running ads on a site that linked to some allegedly infringing material, but there was a separate point brought out by the case -- and by Eric Goldman's analysis, that I wanted to highlight. As we noted, in that case, a court said that Chitika shouldn't be liable, because it was unaware of the infringement. But, the thing is, this is the second ruling in this case. The original ruling, back in January was different. It ordered the ad networks Chitika and Clicksor to freeze all money for the site and stop serving ads. But all of that was done without Chitika's participation in the case. In other words, no adversarial hearing.

Once Chitika got involved, the ruling flipped almost entirely. Or, as Goldman summarizes:

But hold on a second. The court's January order was based on ex parte proceedings. Chitika subsequently showed up to contest the case, and surprise! The court reaches a different result after adversarial proceedings. Let's hear it for due process!!! YEAH!

We hear all the time from defenders of ICE domain seizures and SOPA/PIPA that there is due process "because there's a judge involved." But that's not due process. If one of the key parties impacted by the lawsuit is not heard from it's not due process at all. True due process means you hear from those actually impacted. And, as we see in this case, it can make a pretty big difference.

Filed Under: adversarial hearings, due process, pipa, protect ip, sopa
Companies: chitika, clicksor, elsevier, john wiley

More Collateral Damage From SOPA: People With Print Disabilities And Human Rights Groups

from the add-them-to-the-list dept

As people wake up to the full horror of what SOPA would do to the Internet and its users, an increasing number of organizations with very different backgrounds are coming out against it. Here's one more to add to that list, from the world of non-profit humanitarian groups.

As Jim Fruchterman, president of the Silicon Valley-based Benetech, explains in his post "Why I am Scared of the SOPA bill":

We write software for people with disabilities as well as human rights and environmental groups. We’re against piracy, and have made commitments to authors and publishers to encourage compliance with copyright law.

So, we shouldn’t have anything to fear from a bill entitled “Stop Online Piracy Act,” right? Unfortunately, that’s not the case.

We’re getting very worried that our organization and the people we serve: people with print disabilities (i.e., people who are blind or severely dyslexic), and human rights groups will be collateral damage in Hollywood’s attempt to break the Internet in their latest effort to squash “piracy.” And, if we’re worried, a lot of other good organizations should start getting worried!

Fruchterman goes on to explore two major areas of concern. The first is that Bookshare, an online library for people who can’t read standard print books, might lose the ability to raise funds or take subscriptions.

As he points out, Bookshare is legal in the US, but that doesn't stop authors, agents or publishers who don’t know much about people with disabilities or copyright law sending cease and desist letters. At present, Benetech has time to talk people through the law before anything drastic happens. Here's how SOPA would change all that:

SOPA apparently has shoot first, ask questions later provisions. If any single publisher or author of any one of the more than 130,000 accessible books in our library gets antsy, they can send a notice to VISA and MasterCard and say, stop money from going to Benetech and Bookshare. No more donations to our charity. No more subscriptions from individual adults with disabilities.

No need to send us a letter. Or file a DMCA notice. Or do any real research. Just send out a bunch of notices and get all those pirates! Except, we’re not pirates. But, now the burden of proof has shifted to us: we’re presumed guilty, and we have to spent time and money defending ourselves.

There are two major problems here. First, the money gets cuts off immediately, jeopardizing the entire Bookshare project. Secondly, Benetech has to spend its limited funds paying lawyers to get the financial blocks removed. That will not only take time, it will hamper other worthwhile projects that Benetech could have been working on instead of fighting to get its revenue sources turned back on again.

It's those other projects that Fruchterman worries about in his second concern. Benetech develops free software to help human rights activists around the world safely record stories of human rights abuse. As Fruchterman points out, if SOPA becomes law, his organization will find itself in an impossible position:

The problem is that we provide technology that allows for security, privacy and circumvention. We do it for human rights groups. But, when asked if we know whether or not there are “pirated” copyrighted materials, we can’t say. Because, if we make software that promises to keep your life or death sensitive information secret to the best of our abilities, we won’t build a back door in for Syria, or China, or the U.S. government or even (heavens!) Hollywood.

But SOPA will give the US Attorney General the power to shut down sites that can be used for evading controls on piracy, and Benetech's software could certainly be employed in just that way (even if that is not its purpose). To avoid that, Benetech would presumably have to stop writing and distributing its code - which would place human rights organizations and activists at risk.

What makes this situation particularly ridiculous is that the US government is itself encouraging the spread of just this kind of software, even going so far as to invest in companies producing it. Does that mean the US government will be giving out money to write such software, and then using SOPA to shut it down?

Fruchterman's comments are particularly valuable since they come from an organization that has a proven record of encouraging compliance with copyright law. This is no evil "friend of piracy", as opponents of SOPA are so often branded: this is just some people deeply concerned that two vulnerable groups – those with print disabilities and human rights activists – will be collateral damage if this ill thought-out bill is enacted.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: disabilities, human rights, pipa, protect ip, sopa

Internal Fight Within The ABA Over Position On SOPA

from the legal-food-fight dept

We've noted in the past that there's been a bit of a debate within the American Bar Association concerning the position it should take on SOPA/PROTECT-IP. It seems that the fight is heating up, and different kinds of lawyers are fighting about it. The Trademark Legislation Committee agreed to and adopted (by a pretty wide margin) a resolution saying that SOPA needed significant changes to prevent abuse. A key change? That the private right of action should be filed "under penalty of perjury," rather than the toothless sanctions for those who file bogus takedowns. This seems like a reasonable suggestion to prevent abuse, and the Committee agreed.

But... then the copyright lawyers flipped out. Despite this and other suggestions already being agreed to, the copyright folks proposed a bunch of changes -- including deleting the "penalty of perjury" inclusion. Another change? The trademark lawyers had agreed that the private right of action definition of "dedicated to theft of US property" should be much more limited, adding significant qualifiers to what is covered to deal with the vagueness of the definition. The copyright lawyers want that deleted as well.

Further on that point, the letter the trademark lawyers prepared highlighted serious concerns about how vague the definition of "dedicated to theft of US property" is, and pointed out how it has significant inconsistencies that "need to be addressed." The copyright lawyers? Apparently they don't want to address the inconsistencies and want the whole complaint about the language dumped. Specifically, here was the recommendation that had been approved:

As worded, the definition of web sites that are “Dedicated to Theft of U.S. Property,” which forms the basis of liability pursuant to this bill, is vague and requires some clarification. Specifically, § 103(a)(1)(B)(i) provides three different ways in which a U.S. directed site could have exposure to action under this bill: 1) if it is “primarily designed or operated for the purpose of . . . offering goods or services in a manner that engages in, enables, or facilitates” a violation of 17 U.S.C. § § 501 or 1201, or counterfeiting under 15 U.S.C. § 1116(d) or 18 U.S.C. § 2320; 2) if it “has only limited purpose or use other than . . . offering goods or services in a manner that engages in, enables, or facilitates” the same violations; or 3) if it “is marketed by its operator or another acting in concert with that operator for use in offering goods or services in a manner that engages in, enables, or facilitates” the same violations.

Option three in this series does not require a showing that the marketing efforts have a primary purpose of, or have a limited purpose other than, infringing these intellectual property rights. We believe this inconsistency needs to be addressed to reduce possibility of abuse that could result in the effective shut down (by disabling a revenue stream) of an otherwise legitimate web site that offered a single product later determined to be a counterfeit.

In order to effectuate this purpose, option three in the series identified above should be modified to reflect a narrow interpretation of the definition of “Dedicated to Theft of U.S. Property.”

The copyright lawyers? Want that whole section left out. Basically, it looks like anything that highlights the serious problems of SOPA should be taken out, according to the copyright lawyers. The stuff left in is minor and inconsequential.

Filed Under: copyright, lawyers, perjury, pipa, private right of action, protect ip, sopa
Companies: aba

Kaspersky Dumps BSA For Its Support Of SOPA; Says SOPA Hurts Consumers & Innovation

from the can't-support-that dept

Remember last month, when some SOPA supporters were pretending that because the Business Software Alliance (BSA) supported SOPA, it meant that all of its member companies supported SOPA too? Yeah, well, that resulted in the BSA backing down, after it realized (with some prompting from Microsoft) that perhaps SOPA wasn't such a good thing. It appears that that's not enough for some tech companies. Anti-virus firm Kaspersky has announced that it's dumping its association with the BSA because of its support for SOPA. The company says that it "does not support this initiative," explaining:

We believe that such measures will be used contrary to the modern advances in technology and the needs of consumers.

Perhaps the BSA will learn to not be so quick on the draw in the future to support every single idea to make copyright more and more draconian.

Filed Under: innovation, pipa, policies, protect ip, sopa, support
Companies: bsa, kaspersky

Some Data On How Much The Big Media Firms Are Donating To SOPA/PIPA Sponsors

from the money-in-politics-explains-all dept

The Sunlight Foundation decided to take a look at donations from big media companies to politicians supporting SOPA and PIPA... and, not surprisingly, they found there's lots of money there. Of course, to be fair, I would imagine the reverse is becoming true as well: those opposed to the bills have and will be getting donations from people who, you know, actually like the internet. Some will call it corruption, but it seems more like a systemic problem, and it's not clear which came first -- support for certain types of bills... or donations. But once the process starts, it's hard to get out of that cycle. Those who have received big donations from certain industries want that to continue. And, of course, as Lessig is fond of pointing out these days, part of the game is to be a politician "on the fence" so you can raise money from both sides on a controversial issue.

Either way, what's clear is that big media firms have spread their money around pretty far and wide:

Among the 25 SOPA cosponsors from both sides of the aisle, here's a breakdown of which legislators have brought in donations from big media in TV, music and movies during their careers in Congress.

• Rep. Howard Berman, D-Calif., $1,727,156. His southern district border is Hollywood Blvd. and he was the beneficiary at a fundraiser earlier this month hosted by two lobbyists at a firm that represents the National Broadcasting Association.
• Rep. Adam Schiff, D-Calif., $516,400
• Rep. John Conyers, D-Mich., $488,731
• Rep. Mary Bono Mack, R-Calif., $488,636
• Rep. Lamar Smith, R-Tex., $392,995 (sponsor)
• Rep. Robert Goodlatte, R-VA, $316,686
• Rep. Marsha Blackburn, R-Tenn., $261,700
• Rep. Lee Terry, R-Nev., $248,168
• Rep. John Barrow, D-GA, $210,900
• Rep. Debbie Wasserman Schultz, D-Fla., $204,199
• Rep. Elton Gallegly, R-Calif., $133,023
• Rep. Melvin Watt, D-N.C., $130,100
• Rep. John Carter, R-Tex., $75,850
• Rep. Karen Bass, D-Calif., $64,648
• Rep. Steve Scalise, R-LA, $54,000
• Rep. William Owens, D-N.Y., $42,850
• Rep. Dennis Ross, R-Fla., $30,000
• Rep. Thomas Marino, R-Penn., $21,300

The nearly 40 cosponsors of the Protect IP Act, SOPA's partner legislation in the Senate, have received more than $13.5 million from the TV, music and movies industry since entering Congress. Here's a rundown:

• Sen. John McCain, R-Ariz., $1,996,470
• Sen. Charles Schumer, D-N.Y., $1,465,160
• Sen. Dianne Feinstein, D-Calif., $1,295,718
• Sen. Patrick Leahy, D-Vt., $899,366 (sponsor)
• Sen. Al Franken, D-Minn., $890,668
• Sen. Kirsten Gillibrand, D-N.Y., $747,491
• Sen. Roy Blunt, R-Mont., $503,291
• Sen. Bill Nelson, D-Fla., $493,069
• Sen. Orrin Hatch, R-Utah, $492,407
• Sen. Robert Menéndez, D-N.J., $445,575
• Sen. Joseph Lieberman, I-Conn., $430,500
• Sen. Michael Bennet, D-Colo., $368,733
• Sen. Sheldon Whitehouse, D-R.I., $365,589
• Sen. Robert Casey, D-Penn., $343,225
• Sen. Richard Durbin, D-Ill., $312,320
• Sen. Amy Klobuchar, D-Minn., $297,771
• Sen. Charles Grassley, R-Iowa, $291,621
• Sen. Sherrod Brown, D-Ohio, $284,225
• Sen. Bob Corker, R-Tenn., $254,162
• Sen. Jeanne Shaheen, D-N.H., $237,084
• Sen. Lindsey Graham, R-S.C., $230,569
• Sen. Benjamin Cardin, D-Md., $218,539
• Sen. Tom Udall, D-N.M., - $217,847
• Sen. Kay Hagan, D-N.C., - $171,790
• Sen. Richard Blumenthal, D-Conn., $158,066
• Sen. Chris Coons, D-Del., $94,450

So how do we get out of this cycle? You get continued and effective rent seeking when politicians feel indebted to a few big companies with powerful lobbying arms. It's pretty clear that the American public doesn't like it. So when and how does it stop?

Filed Under: campaign finance, pipa, politics, protect ip, sopa

Mike McCurry Once Yelled 'Hands Off The Internet,' And Now Embraces Massive Internet Regulations In SOPA?

from the ah,-lobbyists dept

Do you remember Mike McCurry? He's the former White House press secretary who was hired by the telcos to run a pure astroturfing group called "Hands Off the Internet," which was focused on attacking net neutrality. I've never been a fan of regulating net neutrality (though I believe that net neutrality itself is important), but McCurry and HOTI seemed ridiculously intellectually dishonest. My favorite trope was McCurry's repeated claims that Google didn't pay a dime for its bandwidth. I asked him to pay Google's bandwidth bills... and never heard back on that issue... though, HOTI did continue to misrepresent my position soon after that on their blog. I hadn't heard from HOTI in a while... and when I go to their website... it's now all in German?!?

McCurry, though, jumped ship a while back to Arts+Labs, an "anti-piracy" astroturf group put together by NBC Universal, Viacom, ASCAP, BMI and others. It pretended it represented the "tech" industry because Microsoft and Cisco were a part of the companies behind it. But, given all that, you'd assume that McCurry and Arts+Labs would be 100% against SOPA, which would create a massive regulatory structure for the internet. After all, HOTI's key video, argued:

These corporations are asking Congress to create volumes of new regulations to control how content is delivered over the internet. Should politicians and bureaucrats replace network administrators?

So, clearly, you would think that McCurry and Arts+Labs would be against SOPA, right? After all, SOPA is about Hollywood asking Congress to create volumes of new regulations to control how content is delivered over the internet. And it argues that politicians and bureaucrats should replace network administrators -- especially on issues like DNS blocking. So, Arts+Labs, is against SOPA, right? Nope:

The introduction in the House of Representatives of legislation to combat the theft of U.S. intellectual property represents an important step in the fight to sustain American creativity and support individual innovators. The newly-introduced Stop Online Piracy Act, along with the PROTECT IP legislation introduced in the U.S. Senate earlier this year provide a way to push back against rogue websites that seek to profit from digital counterfeiting and piracy.

McCurry himself has written op-ed pieces in favor of this kind of massive regulation of the internet.

So, Mike, which is it? Are you for regulation of the internet, or against it? Or does it just depend on who's paying?

Filed Under: copyright, hands off the internet, mike mccurry, protect ip, sopa
Companies: arts+labs

As We Complain About SOPA & PIPA, Don't Forget The DMCA Already Has Significant Problems

from the not-that-they'll-get-fixed dept

A number of folks on both sides of the SOPA/PIPA debates have noted the seeming "irony" that the anti-SOPA/PIPA folks keep pointing to the DMCA and complaining about how SOPA/PIPA will undermine the DMCA. After all, many in the tech industry were quite worried about the DMCA when it first showed up and have continued to complain about it for years. Supporters of SOPA/PIPA point this out mockingly, as if to suggest that the anti-SOPA/PIPA folks are somehow being hypocritical (or doing a "sky is falling" routine). The anti-SOPA/PIPA folks point out how unfortunate it is that entertainment industry lobbyists are pushing so hard on the lever that we're forced to "defend" the DMCA.

Of course, the reality is a little more nuanced, and not nearly so black and white. When the anti-SOPA/PIPA folks "defend the DMCA," they're actually just defending one small part of it: the safe harbors. Those safe harbors were only put into the DMCA after lots of folks raised hell about the initial proposals, which would have included all of the draconian parts of the DMCA... without those important safe harbors. The safe harbors were added to try to make sure that the proper party (the folks actually doing the infringing) were blamed for infringement, rather than they tools they used. SOPA/PIPA supporters who mock people for defending the DMCA now are being disingenuous. If those people hadn't complained, it's likely those safe harbors wouldn't have been included. But like the similar (if different in important ways) safe harbors in Section 230 of the CDA, it's perfectly reasonable to be in favor of the safe harbors but against many other parts of the bill.

Most of us anti-SOPA/PIPA folks agree that there remain huge problems with the rest of the DMCA. Derrick Harris, over at GigaOm, has written an article pointing this out, and asking why no one's trying to fix the broken parts of the DMCA while we're pushing back on SOPA. He highlights some of the problems with the notice-and-takedown provisions, for example:

In 2006, two law professors published a report highlighting the scope of the problem at that time. Although they acknowledged the imperfection of their data set, the results are were pretty startling nonetheless: 41 percent of all studied claims involving content hosted on Google targeted complainants’ competitors, and “a substantial portion” of the claims contained serious legal flaws ranging from the veracity of the claim to non-compliance with DMCA requirements to not even making copyright-based claims.

In 2009, Google noted when challenging a proposed New Zealand copyright law that 57 percent of its takedown requests were from businesses targeting their competitors, while 37 percent weren’t valid copyright claims at all.

Presumably, though, because service providers — even the mighty Google — aren’t really in the position to examine every claim, and even if they spot potential defenses (e.g., fair use), there isn’t much incentive to ignore requests. This creates even deeper problems for copyright law. Commenting in 2006 on whether it’s legal to link to allegedly infringing material, EFF attorney Fred von Lohmann noted, “That’s one of the problems with the DMCA safe harbors — because OSPs have such a strong incentive to simply comply with takedown notices, courts get fewer chances to decide the underlying copyright questions, like whether linking to stuff on YouTube is infringing. So things stay murky."

Indeed. The fact that things get taken down as soon as the notice is sent raises a whole host of issues -- including First Amendment questions. However, Harris's question about why no one's looking to fix the DMCA is pretty easy to answer, if you've followed the debate over the past decade. Early on, there were attempts to fix many of the problems of the DMCA, with Reps. Boucher and Lofgren often trying to fix things... and getting nowhere. Boucher is now out of office, so that was one fewer voice on that subject. But even while he was still in office, he stopped pushing to fix the DMCA.

And the key reason why is going right back to what we started this article discussing. The innovation industry knows how important the safe harbors in the DMCA are... and they realize that if they open up the DMCA for any kind of adjustment, Hollywood will go bonkers trying to kill the safe harbors (which is also why they're trying to do an end run around all of that with SOPA -- which will kill off many of the DMCA's safe harbors). That's because while many of us realize that the safe harbors are the only good part of the DMCA, the big entertainment industry folks think exactly the opposite, and continue to argue that the safe harbors are pure evil. This is folly, but it's reached a kind of stalemate, where neither side is willing to go directly back into the DMCA, for fear that the others will muck with the parts they like. It's a bit of a standoff situation, such that neither side is happy with the overall DMCA, but no one wants to fix the problems, because there's a decent likelihood that lobbying from the other side will make the end result worse.

Filed Under: dmca, pipa, protect ip, sopa

Colbert Takes On SOPA

from the can-we-get-some-internet-policement dept

By the way, I wanted to embed the clips of Colbert's show in this post -- as is clearly allowed by the site. But because Viacom is crazy, they appear to set the embeds to autoplay as soon as you load up the page. And that's freaking annoying. I tried to find hidden variables to stop the autoplay... and nothing worked. So, sorry, no embeds. Meanwhile, Colbert: please, please, turn off autoplay, or at least make it an option. Thankfully, a few folks sent over the secret code to make it work...

Want to see just how mainstream the issues of SOPA and PROTECT IP are becoming? Last night they made it on to The Colbert Report, where he had a bit of a debate about SOPA, between record label owner Danny Goldberg and Harvard professor Jonathan Zittrain. It kicked off with a short segment, where Colbert explained the issue.

As a content provider, I am wholeheartedly against the infringement of copyright... so much so that I had that phrase trademarked and then I had it emblazoned on a Mickey Mouse doll

Which, of course, he then shows to the audience.

But the awesomest part? He quotes the famous $200 to $250 billion in losses claim that always gets thrown around... but then immediately says:

That is a shocking number. Especially when you realize the FBI admits it has "no record of source data or methodology for generating the estimates and that it cannot be corroborated." Now folks, that's what happens when the FBI buys bootleg reports off a card table in Chinatown.

Honestly, this might be the first time I've seen mainstream media -- and a Viacom-owned property, no less -- call out the bogus numbers for being bogus. He finishes by pointing out that YouTube, Twitter and Facebook could be in trouble under the law, and that people uploading infringing videos may face problems as well.

From there, he went into the debate. In his typical satirical way, he introduces Zittrain by claiming he was here to "defend thieves & pirates," and asks him "why do you want artists to starve?" Zittrain did a great job:

"I want artists to thrive. The internet allows artists to find their audiences. When Justin Bieber started singing his favorite songs on YouTube, he got discovered because of the internet. And the odd thing is, under this law, SOPA, the behavior of Justin Bieber, singing his favorite songs, without authorization, over the internet, could make him a felon, in jail for three years."

It's actually five, but close enough. Goldberg, of course, says this is all an exaggeration, and then claims (incorrectly) that the bill only targets foreign sites. Zittrain did note that there were different parts of the bill (but leaves out that many of them target US companies), but then makes the second key point, about how this law uses the same mechanism that China & Iran use to censor the internet there. To which Colbert replies: "I don't know about Iran, but China is kicking our ass in business right now. Wouldn't it be good for American business? Because if we shut down parts of the internet, won't people at work actually do the work they were hired for?"

Goldberg continues to play the "but something must be done" line, leading Colbert to make his alternative proposal: "What if the artist gets something from the company stealing from them? An eye for an iPod?" to which Goldberg says "it's a good line, but..." and Colbert points out, "it's an excellent line, not a good line" and then threatens to sue anyone who "steals" it.

Wasn't expecting much for an under 5 minute interview, but overall Zittrain did a great job, and got in a few key points. The Bieber point is a little exaggerated, because Bieber would have to do a few more things (such as embedding the videos on his own site), but the overall point he's getting at is clear: the bill is overreaching and will harm legitimate activities which artists rely on today.

Filed Under: copyright, danny goldberg, jonathan zittrain, justin bieber, pipa, protect ip, sopa, stephen colbert
Companies: viacom

Alternative To PIPA/SOPA Proposed; Points Out That This Is An International Trade Issue

from the it-is-a-trade-issue,-isn't-it dept

While the MPAA has been pretending that there are no alternatives beyond the insanity that is PIPA and SOPA, some in Congress have actually been hard at work on trying to think through the specific issues. And one key point has become clear: this isn't a law and order issue, but an international trade issue. Nearly all of the complaints are about the problem of "foreign" sites sending goods across the border into the US. So it makes absolutely no sense that this issue isn't under the purview of the Finance Committee, whose job it is to oversee international trade. Thus, a bill is being worked on that tackles the issues as an international trade issue. A "discussion draft" is being circulated on this (embedded below).

This new effort has bipartisan support in both the House and the Senate, and unlike SOPA and PIPA, seeks to try to focus in on situations that are actually problematic. In the Senate, it has the backing of Senators Cantwell, Moran, Paul, Warner and Wyden. All of whom had come out against PIPA, except for Warner. Adding him to this issue is big, given his experience in the business world. On the House side, it's Reps. Chaffetz, Campbell, Doggett, Eshoo, Issa and Lofgren. The focus would be putting the issue into the International Trade Commission, where there are experts focused on trade issues.

I think this is an approach that absolutely makes sense for counterfeit physical goods and the websites that sell them. Frankly, it's bizarre that it ever went beyond a discussion of international trade. It becomes somewhat trickier with copyright issues, and that's because you now have questions about how physical borders apply to digital networks. And I'm not sure I know how to best deal with that. Separately, having seen the ITC process on patents go off the rails at times, and become more of a way for patent holders to issue a "double whack" against a company they accuse of infringement, I'd be concerned about making sure that this process doesn't allow for two bites at the same apple. If it's properly focused on just foreign sites, that might not be as big an issue.

Either way, the devil will be in the details, but the details are still being written. Seeing as this is a discussion draft, I'm hearing that the folks involved really do want a discussion (unlike what we got with SOPA/PIPA), and that includes folks here. Take a look at the draft, and weigh in, knowing that some of the folks involved really will be reading what you have to say.

Filed Under: anna eshoo, copyright, darrell issa, international trade, itc, jason chaffetz, jerry moran, maria cantwell, mark warner, pipa, protect ip, rand paul, ron wyden, sopa, trade, zoe lofgren

Lamar Smith Tries To Defend SOPA; Suggests That Infringement Is The Equivalent Of Child Porn

from the taking-the-high-road? dept

Rep. Lamar Smith, who introduced SOPA in the House, has now taken to the pages of the National Review to defend the bill... and yet he does so in a way that makes almost no sense at all. Frankly, some of it makes me wonder if he even recognizes what's in his own bill... and what existing law is. Let's dig in to some of it:

Claims that the Stop Online Piracy Act will censor legal activity on the Internet are blatantly false. Enforcing the law against criminals is not censorship.

Sigh. Not this again. Look: no one is saying enforcing the law against criminals is the problem. The concern is enforcing it against protected speech (i.e., not infringing speech). And even SOPA supporters' lawyer of choice, Floyd Abrams, has admitted that SOPA would block protected speech (just not enough to concern him). But, more to the point, it undoubtedly is censorship. Law professor Derek Bambauer has pointed out that any blocking of speech is censorship -- and that our society agrees that some forms of censorship are actually okay. The question is whether or not we agree that this form of censorship is okay.

The Stop Online Piracy Act specifically targets websites dedicated to illegal and infringing activity. Often based overseas, these websites are called “rogue sites” because they flout U.S. law and face zero legal consequences for their criminal activity. Rogue sites not only steal America’s products and profits; they steal jobs that rightly belong here at home. This bill cuts off the flow of revenue to rogue sites by preventing criminals from selling and distributing counterfeit products to U.S. consumers.

Fluff and rhetoric with almost no basis, for the most part. First, the problem many of us have is that the definitions are super broad and do not "specifically target websites dedicated to illegal and infringing activity." The definitions allow for much broader attacks. As for the so-called "rogue sites," many of them do face legal consequences at home (witness Swedish prosecution against the Pirate Bay, lawsuits against RapidShare, MegaUpload and others -- all three of which have been called rogue sites by supporters of this bill). Claiming they face no legal consequences is blatantly false. Furthermore, they all face significant business consequences. If they're consistently bad actors, that limits their ability to build a significant business. The final sentence reverts to "counterfeit products." Of course, just yesterday we went through SOPA supporters' own numbers on this and showed that the issue of counterfeit products is miniscule. The problem is when they lump in dealing with the narrow problem of counterfeit products with a very different issue: copyright infringement. Let's deal with the two problems separately. (Also, how do you "steal profits" and "steal jobs"? That's meaningless political rhetoric.)

The bill defines rogue sites as websites that are dedicated to the facilitation of the illegal sale and distribution of counterfeit or pirated goods. Websites like Facebook and YouTube that host user content are not “dedicated to” illegal activity and they certainly do not make a business out of “facilitating” the illegal sale and distribution of counterfeit or pirated goods. But if a user posts illegal content on a website like Facebook or YouTube, current law allows rights holders to notify the website to remove the illegal content.

I'm sure Smith wants to believe this is true. But, it's not. It's proven false by the fact that Viacom is already suing YouTube for a billion dollars. If SOPA had been in place in 2007, you can bet that Viacom would have used the provisions in SOPA to kill off all YouTube revenue first, rather than filing DMCAs and then suing. Viacom clearly believes that YouTube is (or at least was) "dedicated to illegal activity." And since Smith's own bill allows for this private right of action, it doesn't matter whether he really believes it will be used this way or not... all we need to know is how companies will use it, and we've got a long history under the DMCA to see that tools like this will absolutely be abused to shut down competitors and innovative threats.

The Stop Online Piracy Act is a constitutional bill that protects free speech and America’s intellectual property. The First Amendment is not an excuse for illegal activity. Simply because the illegal activity occurs online does not mean that it is protected speech. Like online piracy, child pornography is a billion-dollar business operated online. It is also illegal. That’s why law enforcement officials are authorized to block access to child-porn sites.

And this paragraph is the most problematic of all. First of all, we won't know if it's really "constitutional" until a court determines that. Many constitutional scholars have their doubts. Second, no one claimed that the First Amendment is an excuse for illegal activity. As we explained above, the issue is the collateral damage. Put forth a bill that narrowly focuses on actually infringing works, and this isn't a problem. Here, however, it's much broader. And, again, even the one constitutional lawyer defending SOPA (as part of his work for the MPAA), has admitted that, contrary to Smith's own claims, SOPA "may result in the blockage of some protected speech." Pretending this is an impossibility even when your most ardent supporter admits it... is weak.

But the bigger problem is bringing child porn into this. Smith claims that "law enforcement officials are authorized to block access to child-porn sites." That struck me as an odd statement, because the lawsuit I remember concerning that issue actually said that such a clause in a bill violated both the First Amendment and the Commerce clause. This left me scratching my head, so I emailed a bunch of internet lawyers... and no one was aware of any laws that said law enforcement could just block access to child porn sites. There could be criminal trials that lead to sites getting taken down, but no one knew of legal process that allowed requiring others to block access.

Is there a secret law? Is Lamar Smith making things up?

More to the point, copyright infringement and child porn are very different crimes. Child porn is a felony. Copyright infringement, in most cases, is a civil offense. Yes, in some cases it can be criminal, but SOPA doesn't just apply to criminal infringement. Punishment for the two should be quite different.

Similarly, this bill authorizes the attorney general to seek an injunction against a foreign website that is dedicated to illegal and infringing activity. The attorney general must go to a federal judge and lay out the case against the site. If the judge agrees, a court order will be issued that authorizes the Justice Department to request that the site be blocked.

Notice what Smith conveniently leaves out: in many cases under the bill (not all), they will go before a judge without the other side appearing.

According to estimates, IP theft costs the U.S. economy more than $100 billion annually and results in the loss of thousands of American jobs.

And according to analysis by the US Government Accountability Office, those estimates are complete bunk.

Congress cannot stand by and do nothing while some of America’s most profitable and productive industries are under attack.

The industries aren't under attack. The business models of a few legacy players are under attack. Let's be clear: there is more content (music, movies, books, video games, etc.) being produced today than ever before. There is more money flowing into these industries as a whole. People continue to spend and purchase these goods all the time. The attack is merely on a gatekeeper business model that focuses on trying to set up artificial scarcity.

Unfortunately, there are some critics of this legislation who are not serious about helping to protect America’s intellectual property. That’s because they’ve made large profits by working with and promoting rogue sites to U.S. consumers.

That claim keeps coming up without any evidence at all. It's hard to believe Google profits much at all from infringement. Almost no one is clicking on Google ads on these websites, and Google only makes money if people click.

Google recently paid a half billion dollars to settle a criminal case because of the search-engine giant’s active promotion of rogue foreign pharmacies that sold counterfeit and illegal drugs to U.S. patients.

Totally misleading and irrelevant. That was a case of sites directly advertising via Google. No one has claimed that any of the rogue sites targeted by SOPA are buying ads on Google. This is nothing more the mud-flinging against one company (of many) that are against this bill.

Filed Under: child porn, copyright, first amendment, lamar smith, pipa, protect ip, sopa