RIAA Boss Tries To Defend SOPA & PIPA To The NY Times

from the and-fails dept

With the NY Times coming out against SOPA & PIPA, the RIAA apparently felt it needed to open its mouth... and stick another foot in it. RIAA boss Cary Sherman sent a letter to the NY Times defending the bills with some claims that don't hold up to much scrutiny.

we don’t agree that the proposed bills in Congress could “stymie legitimate speech.” To the contrary, the bills are specifically designed to focus on the worst of the worst sites whose model is predicated on theft.

Tell that to Dajaz1, which was censored for over a year, blocking tons of legitimate speech under similar laws. The bills are not at all focused on just "the worst of the worst." If that were the case, then the RIAA would be happy with the alternative proposal from Wyden and Issa, which actually does try to limit it to the "worst of the worst."

Moreover, there is extensive due process afforded to accused sites under the bills. They require the attorney general to extensively document why a site meets the bills’ tight standards — pulled from existing law and Supreme Court cases — and a federal judge must approve any order.

The same "due process" that Dajaz1 got? In which the domain got seized with no notice, and there was no ability to get into court to have the site owner's side of the story for over a year before the government finally admitted it was mistaken (based, I might add, on questionable claims from the RIAA itself). After all, that involved a "federal judge" too, but no adversarial hearing. The fact that this would go on for over a year is a travesty. The RIAA should be apologizing, not pushing for even greater censorship powers.

Similarly, if companies serving pirate sites choose not to take action voluntarily, copyright owners must state their case and persuade a federal judge to issue a court order before payment processors or ad networks can be compelled to stop servicing the site.

Notice the big "if" that Sherman tries to brush pass quickly here. In Section 103 of SOPA, the law says that companies "shall" take action, meaning they don't really have the option of "not" taking action. In fact, under section 103, not taking action can be seen as evidence of being dedicated to theft of US property -- so it's pretty unlikely that the won't choose to take action. And that's a pretty big concern, because all of the incentives are for companies to pre-emptively take action to censor to avoid the risk of the RIAA dragging them to court. Gee, I wonder why Sherman rushed through that point by hiding it all behind a single "if."

There may be different ways to craft a sensible bill, and we’re all for finding the best way, but one thing is clear: the status quo isn’t working. These illicit sites are among the culprits behind the music industry’s more than 50 percent decline in revenues during the last decade, resulting in 15,000 layoffs and fewer resources to invest in new bands.

Sherman should know better than to make blatantly false statements in the pages of the NY Times. The record labels may have had a 50% decline in revenues, but the wider music industry remains up over that same period. The fact that the companies he represents have been unwilling to adapt while most of the rest of the market has is no reason to rush through bad laws. Instead, it seems like a pretty good reason to suggest that the RIAA and the various labels are in desperate need of more enlightened leadership.

Filed Under: cary sherman, pipa, sopa

SOPA In Infographic Format

from the for-the-visual-thinkers-among-you dept

The folks over at BusinessInsurance.org have put together a pretty decent infographic about SOPA (though they get confused and at one point name some Senators as "supporters," even though SOPA is in the House, not the Senate). Still, if you were looking for a decent visual representation of the whole thing, here you go:

Filed Under: pipa, protect ip, sopa

Apparently Congress Wants To Pretend No One Is Really That Concerned About SOPA

from the so-that's-how-they're-playing-it dept

Despite all of the significant concerns with SOPA, it appears that Rep. Lamar Smith won't let a little thing like the American public stop his plan to help out his friends in Hollywood. It's been confirmed (as has been rumored for weeks) that Smith is planning to hold the markup and followup Judiciary Committee vote over SOPA this Thursday. The manager's amendment doesn't really fix any but the most glaring of problems -- and basically just brings the bill more in line with the already problematic PROTECT IP bill. From what we've heard, Smith and other SOPA supporters still don't believe the American public really cares enough about this bill.

Plenty of folks are working to convince Smith and others that they're underestimating the public's opinion towards censoring the internet. EFF, Public Knowledge, American Censorship, Demand Progress, Engine Advocacy and others are all providing tools to let you speak up. If you think that Rep. Smith and others in Congress are mistaken about the public's feelings towards these bills, pick your favorite and speak up. There's also the amazing new site, I Work For The Internet, which is asking people to add simple photos of themselves in protest of SOPA.

Related to this, the folks at Cato have also officially come out against SOPA and PIPA with the following video: Julian Sanchez, who appears in the video helped explain the privacy problems with the bill last week here on Techdirt. At this point, the only people we actually see supporting the bill are those in the industry itself. It appears that almost no one else is willing to speak up in support of the bill.

Filed Under: congress, lamar smith, pipa, protect ip, sopa

Wikipedia Considers Blackout To Protest SOPA

from the that-would-send-a-statement dept

As more and more internet operations recognize the horrors of SOPA, they're stepping up to do stuff about it. The latest is that Wikipedia is considering a blackout on the site in protest -- a move that might actually catch Congress' attention because people in Congress actually use Wikipedia all the time. There's a discussion on the site concerning whether or not Wikipedia should make this move, and it's not a bad time to add your thoughts to the discussion. Most of the discussion so far appears to be in favor, but more thoughts can only help. The idea is to model this on the rather powerful message that was sent back in October when Wikipedia blocked access to its Italian version in protest of a new wiretapping law.

Filed Under: blackout, censorship, copyright, jimmy wales, pipa, protect ip, sopa, wikpedia
Companies: wikia, wikipedia

The Very Real Risk Of Overly Broad Censorship Under SOPA

from the nice-explainer dept

The more people look at the details of SOPA, the worse it looks. Alexander Macgillivray, much more widely known as amac, is Twitter's General Counsel, and has taken to his personal blog to discuss one of the many troubling aspects of SOPA: the fact that if it's deemed a rogue site because "any portion thereof" of the site is infringing, it can completely block out tons of legitimate speech and content. He constructs the following scenario:

The harm that does to ordinary, non-infringing users is best described via a hypothetical user: Abe. Abe has never even so much as breathed on a company’s copyright but he does many of the things typical of Internet users today. He stores the photos of his children, now three and six years old, online at PickUpShelf* so that he doesn’t have to worry about maintaining backups. He is a teacher and keeps copies of his classes accessible for his students via another service called SunStream that makes streaming audio and video easy. He engages frequently in conversation in several online communities and has developed a hard-won reputation and following on a discussion host called SpeakFree. And, of course, he has a blog called “Abe’s Truths” that is hosted on a site called NewLeaflet. He has never infringed on any copyright and each of the entities charged with enforcing SOPA know that he hasn’t.

And yet, none of that matters. Under SOPA, every single one of the services that Abe uses can be obliterated from his view without him having any remedy. Abe may wake up one morning and not be able to access any of his photos of his children. Neither he, nor his students, would be able to access any of his lectures. His trove of smart online discussions would likewise evaporate and he wouldn’t even be able to complain about it on his blog. And, in every case, he has absolutely no power to try to regain access. That may sound far-fetched but under SOPA, all that needs to happen for this scenario to come true is for the Attorney General to decide that some part of PickUpShelf, SunStream, SpeakFree and NewLeaflet would be copyright infringement in the US. If a court agrees, and with no guarantee of an adversarial proceeding that seems very likely, the entire site is “disappeared” from the US internet. When that happens Abe has NO remedy. None. No way of getting the photos of his kids other than leaving the United States for a country that doesn’t have overly broad censorship laws.

This is just one of many significant concerns about the bill which have been raised. And yet Lamar Smith and the House Judiciary Committeee appear poised to make a push to move forward with SOPA this week (Thursday) anyway. Despite the widespread problems of the bills and complaints about nearly every aspect, Smith is expected to offer up only very modest changes, and then push to have the bill voted through. This is a travesty. Smith's legacy is going to go down as the elected official who led the charge to censor the internet.

Filed Under: alexander macgillivray, censorship, copyright, pipa, protect ip, sopa

Lamar Smith Proposes New Version Of SOPA, With Just A Few Changes

from the not-much-to-talk-about dept

In preparation for his attempt to rush SOPA through Congress, Rep. Lamar Smith has put forth an updated version of the bill (pdf link and embedded below) as a "manager's amendment," which will be used for the markup, to be held on Thursday. The markup process, in theory, allows for amendments and changes beyond what Smith brings here, but don't expect much. After the marketup, the bill gets voted on by the Judiciary Committee, and assuming it passes (likely) the bill can be voted on at any time on the House floor, once the Speaker decides to bring it to the floor.

First up among the "differences," is that this version of the bill changes the language around DNS blocking. But it appears to be more of a chance of style, rather than substance. The old part (in Section 102 (c)2(a)(i)) read:

A service provider shall take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site (or portion thereof) that is subject to the order, including measures designed to prevent the domain name of the foreign infringing site (or portion thereof) from resolving to that domain name’s Internet Protocol address. Such actions shall be taken as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order.

That language has been marginally tempered such that it now reads:

A service provider shall take such measures as it determines to be the least burdensome, technically feasible, and reasonable means designed to prevent access by its subscribers located within the United States to the foreign infringing site that is subject to the order. Such actions shall be taken as expeditiously as possible.

Making it clear that service providers get to pick the "least burdensome" means is better than what was there before (and not giving a hard five day deadline) is at least a tiny step in the right direction, but still leaves us with the simple fact that this is a censorship bill. While it may not name DNS directly, that's the clear implication here. You have to figure out some way to block websites. The new version does also provide some "safe harbors," saying that if service providers determine what is the least burdensome, technically feasible means, and go with that, then that "shall fully satisfy such service provider's obligation." But... that seems to only apply if that means prevents domains from resolving. In other words, you can use any means you want... as long as you censor.

That doesn't actually fix the problems with censorship and DNS blocking. It just lets the Judiciary Committee try to wash its hands of the complaint and say: okay, service providers, you deal with it. That's not helpful.

Most of the rest of this section seems pretty much the same, though it removes the hard five day deadline, which MasterCard had complained about as being unfeasible. Now it's all about "expeditiously as possible." I guess a judge becomes the final arbiter on what expeditious means.

Also left totally in place: the anti-circumvention clauses that will outlaw all sorts of legal encryption and VPN tools.

Moving on to the really awful Section 103, which allows for the private right of action. Here again, the language has been toned down, but just around the edges. Thankfully, they took out the "enables" or "facilitates" part, which really opened up SOPA to massive abuse by private actors, but it's still a pretty broad definition. They've also, just slightly, modified the section concerning violations of section 501 of copyright law, so that the private right of action doesn't apply to all such cases, but just ones where the infringement is "for purposes of commercial advantage or private financial gain, and with respect to infringement of complete or substantially complete works." This seems like a hamfisted attempt to keep some fair use collateral damage from being caught up in SOPA's decapitation blades.

Next up, they've removed one of the most ridiculous sentences from the old bill's 103 a(1)B(ii)I, which had that lovely:

" is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation"

Instead, it's been replaced with:

the operator of the site operates the site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation of section 501 or 1201 of title 17, United States Code, as shown by clear expression or other affirmative steps taken to foster such violation.

That seems marginally better -- but again, what is "other affirmative steps taken to foster such violation"? Would providing a forum? The ability to upload? The ability to rate? I could easily see this provision just as abused as the previous one.

And... here comes the big change: rather than having a notice and takedown provision first, the new section (similar to PROTECT IP) now lets copyright holders jump straight to court, filing either against the site itself or its owners (if they can be found). The relief there is limited to just an injunction, rather than money, but still... Basically, it looks like they more or less did away with the ability to just send a notice to advertisers/payment processors and at least require a modicum of judicial review before a site is cut off -- though, there's no guarantee that the judge gets to hear both sides, depending on the situation (especially likely for foreign sites).

Update: And here's another bigish change that I'd missed in the read through. While Section 103 still refers to "US-directed sites," the definition of "U.S.-directed sites" has now changed to only include foreign sites. Thus, Section 103 no longer refers to domestic sites, but only to foreign ones. Once again... this brings it more in line with PROTECT IP. But doesn't fix any of PROTECT IP's problems.

Other than that, it looks like there are also some changes to the felony streaming provisions, though I haven't had enough time to dig into them and see what they really mean. All in all, it's about what we expected. A few marginal changes of the worst of the worst of the original bill, but nothing that fixes its major structural problems. What you get is something a little closer to what PROTECT IP is in the Senate. However, it still is a bill that requires censorship of the American internet for the first time, and which still contains broad definitions that will be abused by rightsholders. This isn't a fix. This is getting rid of the parts that were put in to be sacrificed on purpose, and still having a really bad bill.

Filed Under: copyright, lamar smith, pipa, protect ip, sopa

Congressional Research Service Shows Hollywood Is Thriving

from the shouldn't-congress-wonder-why-they-need-sopa/pipa? dept

The Congressional Research Service is the research arm of Congress that is widely respected as presenting (non-partisan) high quality, extremely credible research for folks in Congress. In fact, the quality is so good, that many are annoyed that the output of their research, despite being public domain, is rarely made available to the public. The only way that information is released is if the elected official who requested it decides to release it. Thankfully, some of our elected officials do just that.

Recently, Senator Ron Wyden asked CRS if it could explore the state of the movie industry today as compared to 1995 on a variety of different criteria. You can read the full report embedded below, but here are a few key points. First off, despite the industry's regular attempt to play up its contribution to GDP and employment, the report found that the combined GDP contribution of both the "motion picture and sound recording" industries was a whopping 0.4% in 2009. Back in 1995... it was also 0.4%. As for employment, Hollywood loves to claim that it employs millions of people. One popular number is that 19 million people have jobs in "IP-intensive industries." Of course, we've discussed how misleading a term that is, as they lump in all sorts of jobs that have absolutely nothing whatsoever to do with copyright. So, how many people are actually employed in the movie industry? Not that many. 374,000 in 2010 -- and that includes both full and part time workers. And that's really not much different from the 392,000 in 1998. So it's not like the industry has been losing employees in droves as they imply. Furthermore, that's only slightly more than the number of jobs that Facebook's app platform alone is estimated to have created. Hell, we've seen reports that have said eBay alone created 750,000 small business jobs. Perhaps Hollywood isn't as big a part of the economy as it likes to claim.

Similarly exaggerated? Its dire straits. Let's take a look at box office revenue: Also interesting is the look at CEO pay at the major movie studios, then and now. It seems that Disney's CEO (Robert Iger) made $29,617,964 in 2010, compared to Michael Eisner's mere $10 million back in 1994. Time Warner? CEO Jeffrey Bewkes made $26,303,071 in 2010, while his predecessor Gerald Levin made $5 million in 1994. CRS apparently couldn't find past data on the other studios, but in the present, it looks like their execs are all cashing in. News Corps' Rupert Murdoch made $33,292,753. Viacom's Chairman, Sumner Redstone, made $15,033,630, while its CEO Philippe Dauman famously made $84,515,308. NBC Universal was still under GE in 2010, whose CEO, Jeffrey Immelt, brought in $21,428,765. Then there's Sony, whose CEO was the pauper of the bunch, having his salary and bonus cut to a mere $4.3 million due to "financial problems stemming from the Japanese earthquake and tsunami."

It doesn't sound like things are that bad these days in Hollywood. So why do we need massive legal changes again?

Filed Under: business, congressional research service, copyright, data, hollywood, movies, pipa, protect ip, sopa, thriving

Congressional Investigations Into Dajaz1.com Censorship Begin

from the let's-see-what-they-find-out dept

If the Justice Department hoped that it could seize the domain of a hip hop blog for over a year with no due process and then return it quietly and pretend nothing had happened, it may be in for a bit of a surprise. About an hour and a half after we broke the story, it just so happened that Rep. Zoe Lofgren was in a Judiciary Committee hearing with Attorney General Eric Holder, providing her an opportunity to ask him about the situation. You can see the full five minute exchange below: There's not much of substance there. Holder basically says that he doesn't know the specifics, hopes that there's more to the story, and promises that since his daughters are watching and it has something to do with hip hop, that they'll be the first to remind him to respond to Lofgren's question once he has more details.

It looks like he may be getting other reminders as well. Senator Ron Wyden told Wired that he intends to start asking significant questions about Operation In Our Sites, and it doesn't sound like he's going to give up easily:

“I expect the administration will be receiving a series of FOIA [Freedom of Information Act] requests from our office and that the senator will have very pointed questions with regard to how the administration chooses to target the sites that it does,” said Jennifer Hoelzer, a Wyden spokeswoman. She said the senator was “particularly interested in learning how many secret dockets exist for copyright cases. There doesn’t seem to be an obvious precedent or explanation for that.”

I'll certainly be interested to see what they turn up.

Filed Under: copyright, dhs, doj, domain seizures, eric holder, free speech, linking, pipa, protect ip, ron wyden, sopa, zoe lofgren
Companies: dajaz1

HADOPI Wants To Research File Downloads: Shouldn't It Have Done That First?

from the better-late-than-never dept

One of the most important aspects of the UK's Hargreaves Report was that it called for copyright policy to be based on evidence. It also noted that so far that simply hadn't been the case, and that practically all of the so-called "studies" used to justify laws in this area came from the copyright industries, with missing or dubious methodologies.

The French three-strikes scheme known as HADOPI (actually the name of the government agency that oversees its implementation) is a perfect example of such dogma-based legislation: no research was done into how files were being shared or even whether they did any harm (there's a fair amount of evidence that file sharing increases sales).

So it's interesting to see HADOPI putting out a call for some research into streaming sites (original in French):

The commissioned study focuses on an economic analysis of streaming sites and direct download where illegal practices are the most common, offering cultural property in the areas of music and video.

This new interest in streaming sites is presumably a consequence of Nicolas Sarkozy's announcement at the recent Forum d'Avignon that "we have to tackle the streaming web sites." It's certainly welcome that HADOPI is doing some research before it draws up its proposals in this area; but shouldn't it have done the same with the original three-strikes scheme?

There's an interesting parallel with SOPA here. In the section with the splendid title "Denying U.S. Capital To Notorious Foreign Infringers", we read the following:

Report to Congress- The Intellectual Property Enforcement Coordinator shall, not later than 6 months after the date of the enactment of this Act, submit to the Committees on the Judiciary of the House of Representatives and the Senate a report that includes the following:

(1) An analysis of notorious foreign infringers and a discussion of how these infringers violate industry norms regarding the protection of intellectual property.

(2) An analysis of the significant harm inflicted by notorious foreign infringers on consumers, businesses, and intellectual property industries in the United States and abroad.

Again, it's good that some research into that "significant harm" will be carried out, but shouldn't that come before the legislation is drawn up and enacted, not after it?

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

Filed Under: evidence, france, hadopi, hargreaves report, impact, pipa, piracy, post hoc, protect ip, research, sopa

Rupert Murdoch Personally Lobbies Congress For SOPA And PROTECT IP

from the wouldn't-he-just-love-that? dept

Well, well. Apparently dealing with the fallout from the News of the World reporters hacking into phones in the UK isn't keeping Rupert Murdoch busy enough. He showed up in DC last week to make a personal plea to Congress to support SOPA and PIPA and censor the internet. It's been clear for quite some time that Rupert Murdoch doesn't get the internet. His history is littered with massive and expensive internet failures. So it's no surprise that he's lobbying hard for a law like SOPA and PIPA, which will restrict up and coming online competitors and help clear out some of the field so that maybe he and his son James can finally get their wish to turn the internet into something that looks a lot more like TV: with the big media conglomerates delivering the content, and everyone else just consuming (and paying for) it.

Filed Under: copyright, lobbying, pipa, protect ip, rupert murdoch, sopa
Companies: news corp.