SOPA Markup Day 1: We Don't Understand This Bill, It Might Do Terrible Things, But Dammit, We're Passing It Now

from the how-congress-works dept

So, if you weren't paying attention, yesterday was a marathon session of SOPA amendments... It ran for 11.5 hours, with just one tiny break, and it looks like they didn't even get through half of the amendments. I'll get into some more details in a bit, but honestly the single best description of the insanity of these hearings came from The Washington Post's Alexandra Petri, who called them "nightmarish."

If this were surgery, the patient would have run out screaming a long time ago. But this is like a group of well-intentioned amateurs getting together to perform heart surgery on a patient incapable of moving. “We hear from the motion picture industry that heart surgery is what’s required,” they say cheerily. “We’re not going to cut the good valves, just the bad — neurons, or whatever you call those durn thingies.”

This is terrifying to watch. It would be amusing — there’s nothing like people who did not grow up with the Internet attempting to ask questions about technology very slowly and stumbling over words like “server” and “service” when you want an easy laugh. Except that this time, the joke’s on us.

That really describes the situation perfectly. Over and over again the people in favor of this bill flat out admitted that they didn't understand the technology -- and when the various people opposed to it asked why don't they get some experts in to answer some questions, the supporters had no credible response. The DNS and security aspects were completely brushed aside. As Rep. Jason Chaffetz (who is fighting the good fight against this) pointed out repeatedly, there's simply no reason to rush this bill when there are such widespread concerns about it and no one has taken the time to get the answers to key questions.

But the supporters of the bill -- mainly Reps. Lamar Smith, Bob Goodlatte and Mel Watt -- simply wanted to push forward at all costs. They rejected every amendment raised, except two minor ones (we'll get to that in a minute). Amazingly they rejected all sorts of quite reasonable suggestions -- while complaining that those opposed to the bill never had any suggestions to fix it! And yet when those actual proposals were brought up, they were rejected out of hand. It really was pretty disgusting. Goodlatte's responses struck me as particularly inane. He kept rejecting amendments because he feared that the amendment could be abused. The fact that most of those amendments were to prevent the much wider scale abuses guaranteed under SOPA never seemed to occur to him.

In fact, supporters of the bill regularly used arguments that actually could have been turned around on them. They refused an amendment from Rep. Darrell Issa to limit the powers of the bill to those who actually were in the US, saying that it would set a bad precedent for countries like China... and this came just after they were totally outraged that anyone might think that the entire bill itself sets a bad precedent for countries like China. The disingenuous bullshit was really ridiculous.

Rep. Watt was particularly keen to display his own ignorance. He regularly admitted that he wasn't very knowledgeable on technology -- which should have been a reason to recuse himself or to at least ask for more info from experts. Instead, he just insisted that all of the technical experts were simply wrong. Based on what? Nothing. How does someone like Watt get elected when he appears to want to regulate the internet based on pure faith and against what every single expert has said? It's downright scary.

Later, Watt angrily rejected an amendment to clarify some language to make sure it was limited -- by saying that he believed the language already said what the amendment added. If that's true, why reject the amendment? All it would do is make the intent clear. Instead, he said no. That makes no sense at all.

What was clear, from the beginning, was that the SOPA supporters were not there in good faith. They had no intention of listening to reasonable suggestions to fix the bill, and stuck together as a bloc to reject pretty much all of them -- even while admitting their own ignorance. The really sad part was when Goodlatte tried to equate the views of a couple of policy analysts who get money from the entertainment industry, with the views of nearly 100 independent internet engineers who have pointed out how problematic SOPA really would be. Watt and others tried to pretend that because each side could turn up someone who would say something that those views were equal. It's the insane Congressional equivalent of "he-said/she-said" journalism, where you "hear" both sides, but never seek out the truth. That's nuts.

The simple fact is that nearly every single actual credible internet engineer has come out against these bills. There isn't an equivalence where each side can turn up a few people. The scales are completely weighted down against the bills... and many of those people have no associations whatsoever -- even as SOPA defenders insisted that only "Google" experts were against the bill. Stewart Baker isn't speaking for Google. Sandia National Labs isn't speaking for Google.

The real insanity is that supporters of the bill are rushing forward just because they want to pass "something," and they don't seem to care about the consequences.

As for the two amendments that did pass, one was to say that if you "knowingly misrepresented" a claim on a site, you had to pay attorneys' fees. Of course, "knowingly misrepresent" is a very, very high bar that will almost never be met. A similar amendment by Rep. Chaffetz that would also require fees if you failed to get an injunction in court was rejected, because SOPA supporters were worried this would scare people off. As Chaffetz pointed out: that's the whole point. It would scare off those who don't have strong, legitimate claims.

The other amendment that passed right at the end, was from Rep. Jared Polis, requiring the State Department to do a study on the eventual impacts of SOPA. That doesn't change the law really. It just will at least let people check back in on the damage it does a couple years from now.

A few other key points:

• Huge kudos to Reps. Issa, Lofgren, Chaffetz and Polis, who combined to repeatedly point out the problems of the bill and to argue forcefully and compellingly about why we needed to fix these problems. That much of the rest of the Committee ignored these concerns, played them down, or rejected them for silly or nonsense reasons, is really just a statement on the sad state of Congress today.
• I heard from sources that a big time content industry lobbyist was seen hanging out in the "members only" area during the session. If that doesn't tell you everything you need to know about what's going on, then you're not paying attention.
• There was a bizarre elementary school-like fight that went on at one point. Rep. Steve King tweeted early on:

  We are debating the Stop Online Piracy Act and Shiela Jackson has so bored me that I'm killing time by surfing the Internet.

  Rep. Jackson-Lee found out about this and announced that she was "offended," at which point it seemed like a bunch of these old clueless men started arguing about how inappropriate it was for her to say she was offended. The whole session had to pause while they talked to a "parliamentarian" about whether it was okay to use the term "offended," eventually leading Jackson-Lee to change her statement. Yeah. These are the people in charge of making our laws. Scary.
• With the session going on for 11.5 hours, there was a short break for lunch, but for dinner Rep. Lamar Smith offered "four kinds of pizza," but apparently only for other members. Staffers had to sit and starve. Nice of them, huh?

All in all, the process should leave you frightened for our country. This was not an attempt to fix a broken law. It was an attempt to please some Hollywood funders at the expense of innovation and jobs. It's insanity.

That said... if you want to watch more of it today, tune in either at the Judiciary website or the KeepTheWebOpen site and make sure you have a pillow nearby for when you want to bang your head on the desk or wall. Once again, I'll be live-tweeting some of the hearing (don't think I can make all of it) from my personal Twitter account.

Filed Under: bob goodlatte, copyright, darrell issa, dns, dnssec, jared polis, jason chaffetz, lamar smith, markup, mel watt, sopa, zoe lofgren

Tons Of Amendments Proposed For SOPA

from the sit-back-and-relax,-this-is-going-to-take-a-while dept

The "markup" process for SOPA is going to begin shortly (at 10am ET/7am PT), and it's going to be quite a circus. This is when various amendments can be proposed and debated. You can watch it stream live, if they can keep the stream up (they had trouble during the SOPA hearings). On top of that, I'm planning to live tweet as much as I can via my Twitter account -- assuming Twitter doesn't tell me I've "hit the limit of tweets for the day" (as it did during the hearings as well). I also have a few meetings here and there, so I'll have to disappear from time to time depending on how long the markup goes. But I still intend to cover as much as I can.

Normally, this process doesn't take a huge amount of time... but this time around there are a huge number of amendments, and reports are that it may take two days to get through everything. I've heard anywhere from 55 to 60 amendments are being proposed, each one of which needs to be discussed and voted on. We got our hands on an "amendments roster" (embedded below) that shows 55 amendments. It's possible that more have been added. However, there are plenty of interesting amendments already here -- and it suggests, at the very least, that some unexpected members of the Judiciary Committee retain serious concerns about SOPA, even after Lamar Smith's watered down version was released.

Here are just a few of the interesting amendments:

• Zoe Lofgren has an amendment that says a DNS operator should have no obligation to block a website if doing so would impair the security or integrity of the domain name system or the operator's system or network. I'm sure opponents will say this makes the blocking toothless, but what they're really saying is they don't care if censoring websites they don't like harms the security of the internet.
• Darrell Issa tries to completely dump the DNS blocking section, as well as the requirements for search engines to block links. This would be a huge step forward... which is why Smith will never let it happen.
• Lofgren wants to make sure the anti-circumvention rule isn't able to be used to block tools used to get around foreign censorship. Considering our own State Department is funding such tools... this seems important. But it does lead to a bizarre situation where it could be legal to create circumvention tools for foreigners, but not for your own country. The whole circumvention stuff is ridiculous.
• Lofgren also wants to make sure that those defined as "foreign infringing sites" actually violate copyright law, rather than "facilitate" infringement. Defenders of SOPA insist it's just about enforcement, not about broadening copyright law itself. But when you extend enforcement to things that don't directly break the law...
• Jared Polis wants an amendment saying that the US government won't spend any money "protecting the intellectual property rights of pornography." Interesting.
• Polis also wants to dump the anti-circumvention provisions entirely. Good for him. Anti-circumvention has been a disaster under the DMCA. Expanding it here would just be crazy.
• Jim Sensenbrenner wants to do away with the private right of action entirely. Also a good idea. At least someone recognizes that this is a lawyer's dream tool. The private right of action will be massively abused. It wasn't clear where Sensenbrenner stood on the overall bill, but nice to see that he's clearly concerned with the likely abuse of section 103. He has another amendment that "replaces" the private right of action with the ability serve an order on payment providers and ad networks -- but limits the authority to enforce this to the Attorney General. I'm not sure this is that much better, but it'll be interesting to hear the details.
• Lofgren tries to narrow the definition of what's "dedicated to theft of US property." This needs to be narrowed. While it's narrower than it was in the original, it's still way too broad.
• Jason Chaffetz has an amendment that says if a company files an action based on Section 103 (trying to get ads or payment processors cut off) and the court disagrees... the company who files has to pay all fees of all the parties. Similarly, Ben Quayle, has an amendment that says anyone who knowingly misrepresents that a site is "dedicated to theft of us property," they'll be required to pay attorneys fees and court costs, and another amendment that just says that the losing party pays. Good to see more members worried about how the private right of action can be abused.
• There are a bunch of amendments clarifying that ad networks, payment processors and search engines should only get immunity in very specific cases for voluntarily cutting off sites, rather than the broad immunity currently in the bill.
• Chaffetz and Polis both have amendments concerning the "study" on the impact. Chaffetz, quite rightly, says that key parts of section 102's DNS blocking should not go into effect until after a study is done assessing the impact on internet security. Polis also wants a report on the impact of DNS blocking, as well as the impact on "employment, economic growth and the availability of capital."
• Polis wants to add in DMCA-like safe harbors to the felony streaming provisions, and also make it so first time offenses remain a misdemeanor.
• Hank Johnson includes one of my favorite clauses, and one I think should be on almost every bill: the provisions of the bill expire after five years. Why more bills don't have such provisions, I don't understand.
• Polis takes on the issue of massively expanding the diplomatic corp. with diplomats whose sole job it is to push ever more draconian copyright law on foreign nations, by saying they should be required to "consider fair use, consumers and licensees as part of their duties." What? Consider consumers? When would Congress ever do that?
• And, of course, Issa seeks to substitute his own OPEN bill. That would definitely be a big step forward towards getting rid of the problems of SOPA, but there's no way that amendment passes.

There are a bunch more, but those were just some of the interesting ones... We'll try to have a wrap up after it's all over. Chances are most of these amendments won't pass, but perhaps a few of them will at least get a reasonable hearing.

Filed Under: amendments, ben quayle, darrell issa, hank johnson, jared polis, jason chaffetz, jim sensenbrenner, lamar smith, sopa, zoe lofgren

The Good And The Bad Of The New OPEN Bill From Wyden And Issa

from the some-good,-some-bad dept

Sen. Wyden and Rep. Issa have released a draft of OPEN: Online Protection & ENforcement of Digital Trade Act, intended as an alternative to SOPA/PROTECT-IP. See my prior posts opposing SOPA and linkwrapping the discussion. Unlike SOPA's disgustingly blatant rent-seeking, which was such an over-the-top abuse of the legislative process that it did not (and could not) support a principled or even intelligent conversations about it, OPEN provides a useful starting point for a sensible conversation that could actually lead to acceptable compromises. For that reason alone, I think Congress should immediately stop all work on SOPA/PROTECT-IP and redirect that energy towards vetting this proposal. Having said that, for reasons I'll explain in a moment, I continue to believe the assumptions underlying SOPA/PROTECT-IP and OPEN are misguided, meaning that forging a compromise from OPEN's more sensible proposal may be tricky.

Before I get further into substance, two process notes:

First, SOPA was the product of rent-seekers who were talking only amongst themselves and legislators tethered to their campaign contributions. The drafting process was disturbingly closed-door and exclusionary, exactly the kind we wish didn't take place in our representative democracy. In contrast, the OPEN sponsors want to have a dialogue about their ideas. In support of that, they have posted the draft to a website that allows comments and discussion. This is the way our democracy SHOULD work. Why is such an open process the exception instead of the rule?

Second, OPEN is a comparatively svelte 18 pages focused mostly on one core concept, compared to SOPA's 78 page monstrosity that advanced about a dozen different substantive proposals. I can't tell you the number of times I've seen very smart people stymied to keep all of SOPA's moving parts separate, and the failure to do so meant that they were conflating different parts of the statute in ways that prevented productive discussion. (Just two examples: the Colbert Report, where Zittrain mostly focused on SOPA's felony streaming provision while his counterpart was mostly talking about the cutoff provisions; and Business Insider's infographic where the felony streaming sanction was presented as a remedy to the cutoff provisions.) By reducing the number of topics at issue, OPEN substantially reduces the chance that policy discussants will simply talk past each other.

An Overview

The law contemplates that rightsowners can file a petition against rogue websites at the ITC, an independent federal agency best known for its adjudication of certain patent disputes. In response to the rightsowner's petition, the ITC will conduct an administrative adjudication. If the ITC determines that the website is a rogue website, then (1) the website is required to cease its conduct (not sure how enforceable that is), (2) the site also will be subject to any other unspecified consequences following from its determination as a rogue actor, and (3) most importantly, the rightsowner can take the ITC determination to payment service providers (PSPs) and ad networks and have them cut off the flow of money to the rogue website. The PSPs and ad networks would be protected by several immunities for trying to comply with the orders or their other efforts to protect the public.

This makes OPEN similar to SOPA in that it seeks to cut off funds flowing to rogue actors. However, among other key differences, PSPs and ad networks have no legal obligations until the ITC makes a ruling. In contrast, SOPA imposed cutoff obligations on PSPs and ad networks based merely on rightsowners' unsubstantiated assertions.

What's Good

Substantively, some of the things I liked about OPEN:

* it situates the discussion about "rogue websites" in foreign trade policy. This fixes SOPA's overinclusive application to both domestic and foreign actors. However, if we really think rogue websites are a transborder enforcement problem, there are many other trade policy solutions that might be better options to consider—the most obvious being transborder enforcement coordination like the FTC does with its foreign counterparts.

* OPEN doesn't touch the domain name system or search engines. SOPA had the potential to destroy the DNS and to jeopardize search engine functioning. OPEN sidesteps both pitfalls.

* OPEN builds in some due process before any formal legal obligations attach. As we've recently seen, due process is actually quite important, and we suffer from its absence. I say "some" due process because I'm not sure how much due process will attach in practice. For example, I have some concerns about the notice provision--not every targeted website will receive notice of the ITC investigation. However, I did like that any website the ITC labels as rogue can correct any identified problems, reapproach the ITC and ask it to remove the "rogue" determination.

* the definition of rogue website is tightened up substantially. It requires three elements:
a) a "non-domestic domain name," which requires that the registry, registrar and registrant all have to be located outside the US (I'm not sure what "located" means in this context). Venkat asked me what happens to a .com registered with a foreign registrar; I believe OPEN does not apply to this domain name.
b) conducting business in the US; and
c) "has only limited purpose or use other than engaging in infringing activity and whose owner or operator primarily uses the site to willfully engage in infringing activity."

The last element, in particular, is quite restrictive by requiring willful infringement. The meaning of the word "willful" is notoriously murky (see, e.g., the multitudinous Supreme Court cases over the word), so the statute would be improved by using a more detailed synonym. No matter what, though, willful is a high scienter level that should easily exclude most legitimate players. The statute further expressly excludes any sites that:

- follow good notice-and-takedown procedures
- qualify for 17 USC 512 (the DMCA online safe harbors) [this means that the statute sits next to 512 instead of rendering 512 moot like SOPA threatened to do], or
- distribute "copies that were made without infringing a copyright or trademark." I'm not 100% sure what this means. It apparently excludes websites reselling goods covered by the First Sale doctrine. I presume that the exclusion includes sites that sell legitimate knock-off goods, such as replicas of goods that aren't protected by copyrights or trademarks.

* if a PSP or ad network fails to comply with an ITC order, the only consequence is that the DOJ can seek injunctive relief. Rightsowners do not have a private cause of action in those cases. As discussed below, this doesn't eliminate all PSP/ad network exposure to rightsowners, but rightsowners can't introduce evidence of ITC orders in any civil suits they bring against PSPs or ad networks.

* on the trademark side, it expressly limits its applicability to counterfeiting (although there is an erroneous cross-reference in the draft). Presumably, dilution or garden-variety trademark infringement disputes don't qualify under the statute.

What's Not Good

Substantively, some of the things I don't like about OPEN:

* OPEN still contemplates reestablishing a Fortress USA. Fortress USA marginally makes sense regarding the shipment of physical goods across geographic borders. It makes zero sense for digital bits zinging around the borderless network.

* in particular, because OPEN would burden only US-governed PSPs and ad networks, it may drive websites—including legitimate websites who want to reduce their risk of being mistargeted—to shift their business to foreign-based PSPs and ad networks. If lots of businesses make a switch based on these concerns, OPEN could counterproductively result in net financial losses for the US economy.

* similarly, foreign websites can opt-out entirely of the ITC process by consenting to US judicial jurisdiction. I like the idea of an opt-out, but imagine if other countries offered the same quid-pro-quo of allowing US websites to opt-out of some nasty foreign process so long as the websites consent to jurisdiction in their countries. I think we'd be outraged and insulted; which is how I would expect foreign countries to view this quid-pro-quo. Cf. Venkat's recent post on Facebook v. Faceporn. Then again, other countries might think it's a pretty good idea, leading to a proliferation of transborder quid-pro-quo jurisdictional offers.

* designating the ITC to conduct the investigations is a little odd. First, the ITC is an administrative agency, not a federal court. I don't fully understand all of the implications of administrative vs. judicial review, but I believe there are substantial procedural differences that could lead to important substantive differences. Second, the ITC has been gamed in the patent world (see, e.g., my colleague Colleen Chien's research on the ITC explaining how the ITC hears many US company vs. US company disputes), so I fear similar gaming will emerge. For example, a rightsowner chasing a rogue website could simultaneously pursue a domestic court action, a foreign court action and an ITC proceeding. How would these types of parallel proceedings play out in practice? We're still trying to resolve the parallel proceeding problems in patents.

* like SOPA, the bill covers copyright infringement, trademark infringement *and* 1201 circumvention. I don't understand why the circumvention issue is getting equal billing or how often transborder circumventions are a real problem. Seeing how 1201 circumvention lawsuits have devolved into anti-competitive enforcements, picking up the circumvention piece could increase the risk of competitive misuse of the statute.

* like SOPA, the definitions are vague. Consider, for example, the definition of Internet advertising service:

The term Internet advertising service means a service that serves an online advertisement in viewable form for any period of time on an Internet site.

Hmm...what does that mean? Notice that the definition doesn't directly distinguish between third-party ad networks and sites that sell their own ads. I think in practice sites that sell their own ads drop out of the statute, so one possible implication is that more sites will ramp up their own ad sales. (This is doubtful, but just throwing the possibility out there.) I think the focus on "viewable" is interesting; are audio-only ads excluded? And what does it mean to "serve" content? This contemplates a specific technological interaction that I don't fully understand today and will almost certainly evolve over time.

Why I'm Not Enthusiastic About OPEN

Even though OPEN is worth discussing intelligently, unlike SOPA, I believe it's based on two underlying assumptions that aren't fixable.

First, like SOPA, OPEN assumes there is a problem with foreign rogue websites that needs to be solved. I'm not saying there isn't, but the policy discussions have been startlingly devoid of reliable and credible facts demonstrating the nature and scope of the problem.

Instead, the evidence in support of a rogue website "problem" typically consists of two main threads: (a) people are dying from counterfeit drugs, and (b) bad guys are "stealing" our stuff. With respect to the former, I've never seen anything more than ad hoc assertion; but if there's a real problem, counterfeit drugs can be fixed with a highly targeted solution. With respect to the latter, it's hard to give those arguments much credit. After all, all rightsowners' arguments are inherently self-interested: it's in their financial interest to say that they would like to make more money than they are making. It's also in their interest to bemoan broad sectoral changes in the economy as evidence that someone is capturing money they think they are entitled to (and to use rent-seeking to thwart those broad sectoral changes). More importantly, there is lots of evidence that a lot of rightsowners are making a lot of money today, both via the Internet and more generally. So it's hard to break out the quantity of actual economic losses that rightsowners are truly suffering when those claims are intermingled with rightsowners' general rent-seeking efforts.

Therefore, until the rightsowners offer us more than the trumped-up BS already-discredited statistics, I'm still not clear on the problem, how bad it is, how any legislative solution would remediate that problem, and if the collateral consequences of the effort to remediate the problem are greater or less than the problem itself. OPEN does nothing to fill the void of supporting foundational evidence of the problem, so it's hard for me to be enthusiastic about its solution.

Second, and more importantly, attacking the money supply to supposed bad actors remains too blunt an instrument. I may be truly on my own on this point, as many people I respect--including, notably, Rep. Lofgren--are prepared to embrace the policy solution of cutting off money flows. However, by embracing an attack on the movement of money, OPEN replicates one of SOPA's sins. If a player is engaged in legitimate and illegitimate activity and its money supply is cut off, both activities go down the tubes. In contrast, one of the positive aspects of 17 USC 512(c) and (d) is that they require the copyright owner to identify infringing items and target only those items. Giving rightsowners a remedy that would affect an entire site for only some items on the site goes too far.

The OPEN bill tries hard to minimize overbreadth by narrowly defining the targeted websites. Perhaps this definition is narrow enough that there won't be much collateral damage. However, in practice, regulating money flows nevertheless could have pernicious effects in the field. A PSP or ad network drawn into an ITC proceeding frequently will "voluntarily" choose to toss the targeted website before the ITC proceeding reaches its conclusion—even if the ITC proceeding would have rejected the challenge. Furthermore, rightsowners still will send cutoff notices to PSPs/ad networks without filing any ITC petition, and the PSPs/ad networks will often honor them as a way of preempting an ITC proceeding.

What this teaches me (in combination with the Elsevier v. Chitika case) is that PSPs and ad networks need robust statutory immunities which are not based on a notice-and-takedown scheme. On the trademark side, the need for an immunity became clear after the sloppy language in Gucci v. Frontline. On the copyright side, 512 doesn't cover PSPs and ad networks, probably because in a million years the safe harbor drafters never thought PSPs and ad networks would be liable for third party infringing activity in the first place. Now that we've seen copyright law and trademark law creep much further than we could have imagined in 1998, we should plug this liability hole completely. If OPEN proceeds, it should have a broad-based immunity for PSPs and ad networks with the idea that rightsowners are getting a specific remedy against them in the new law.

While OPEN can't really be fixed to resolve my two structural concerns, my hope is that the discussion about OPEN will force rightsowners to provide *credible* evidence of harms that they or consumers are suffering (no more self-serving hype, please), and that such evidence will force us to think carefully about how "rifle shot" solutions (as opposed to shotgun solutions) can ameliorate those harms. If we have a discourse that even slightly resembles this ideal, then OPEN will be successful no matter what final outcome we reach.

Filed Under: copyright, darrell issa, itc, open, pipa, protect ip, ron wyden, sopa, trademark

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

Thoughts On The House Judiciary Committee's Hearings On SOPA

from the some-good-some-bad dept

As some of you know, I spent three plus hours this morning watching the House's SOPA hearings, with the deck stacked against anyone who pointed out concerns about the broad overreach of these bills. I "live tweeted" my thoughts, and apparently did so so much that, at one point, Twitter cut me off for having "exceeded my limit"! I had no idea such a thing was possible. The other technological issue of the day was that the video stream from the House was terrible for the first half of the hearings. It was choppy, at times it would stop, speed up, slow down or cut out entirely. The fact that they were using crappy streaming products really says something about the House's knowledge of technology. Seriously. BitTorrent just released a new streaming video product designed to handle high volume events... but, of course, the House won't bother with something like that. There's definitely a joke in there somewhere about how those who set up these hearings, on a bill that would make unauthorized streaming a felony, were unable to handle the technology for streaming.

Below, I've embedded a bunch of my tweets, along with those of a few others who were covering the hearing, which you can also see over at Storify. I'll list out a few thoughts, however:

• I was slightly surprised at the number of Representatives who expressed clear concerns over different aspects of SOPA. Reps. Lofgren and Issa were expected to come out against it, but it wasn't clear who else would do so. Among those who expressed significant concerns were Reps. Lungren, Jackson Lee, Waters, Cohen and Johnson. Their concerns may have been different, but all had significant concerns. Lungren worried about the problems with breaking DNSSEC. Jackson Lee, Waters and Johnson worried about the impact on entrepreneurs. Johnson worried about how China and Iran would view this law. Cohen, similarly, worried that the entertainment industry had expressed concerns about Russian and Chinese search engines, and if Google were forced to block them, that it might lead to diplomatic issues, and Russia and China deciding to retaliate against Google.
• Both Lofgren and Issa were extremely well informed and able to drill down on issues that others ignored. Issa, in particular, pointed out a key point: that we already have the ITC to deal with foreign patent issues, so why not let the well-known proven ITC process deal with copyright issues as well? He's apparently introducing legislation to that effect. While I have some concerns about how the ITC process works for patents (mainly in that it gives "two bites at the apple" in some patent cases), this actually is a much more compelling idea that should be explored further.
• The lack of any technology expert on the panel was glaring and made the Judiciary Committee look bad. Rep. Lungren made that clear by asking every panelist to respond to former DHS official Stewart Baker's concerns over DNS blocking... and got back blank stares and admissions that no one on the panel had any particular knowledge about that issue. This seems like a huge indictment of how the panel was constructed -- without any interest in dealing with the significant problems of the bill.
• The MPAA and some of its supporters on the Committee repeatedly claimed that you could just go to Google and put in the names of movies and find pirated versions. The two examples they used were "J. Edgar" and "The Grinch Who Stole Christmas." If you actually Google either of those, you don't actually get pirated versions, but official sites, reviews, news, etc.
  One of the Representatives (I forget who) countered by noting that he did the J. Edgar search on YouTube, including "free" after the name, and found full length versions for free. So I just did that search, and while there are a few videos that claim, "watch full length J. Edgar free," those videos are all 2 or 3 minutes long. In other words, they're not the full videos, contrary to the claims, and they're just trying to trick people into watching them.
• The MPAA's Michael O'Leary showed support for regimes that censor the internet, by saying that "the internet isn't broken" in places like China and Iran... He really should spend some time there speaking to those who have been censored.
• There were numerous questionable statements from different Representatives about how musicians and filmmakers need this. Yet, as we've seen (on this very site), many such musicians and filmmakers think that having a working internet, with cool and useful services, is more useful and important than propping up the big studios and labels who haven't adapted, and never had the artists' best interests in mind anyway. Rep. Deutsch said that the next Drake might not make music because of piracy. That's kind of funny since Drake has said he doesn't mind piracy and actually scolded Universal Music for issuing takedowns on music he purposely leaked.
• Along those lines, the really amazing thing is how few people pointed out that the real problem here is the industry's failure to adapt. Rep. Quayle worried that the only business model available to people, if piracy were allowed, is an ad-based business model, and fretted that this would cut off business models based on paying for content. Yet... some of the most popular services online today are pay for content services, including Netflix, iTunes, Spotify, Amazon, etc.
• Some other bizarre statements included Rep. Ross mocking Google for suggesting that it was okay when Google chose sites to block, but somehow if the government got involved, that was a First Amendment issue. Except, there's nothing mock-worthy there. That's actually the law. Google can choose what sites to block, but the government telling them what to block is censorship. Kind of strange that Rep. Ross found that to be a crazy suggestion. Rep. Poe had a "stealin' is stealin'" comment. That's nice, but "infringement" ain't "stealin'"
• Lots of complaints from Reps. about how the tech industry didn't suggest anything better than SOPA. This is a lie. Tons of folks in the tech industry offered up ideas, drafts, suggestions, etc. Plenty of folks in the tech industry offered to sit down, meet, discuss. And all of that was rejected by the authors of the bill.
• Google was clearly the pinata. As we expected, they were chosen to present because some felt they were easy to dismiss. Rep. Amodei, after admitting he doesn't understand technology, called Google execs "pansies." Rep. Smith used Google's trouble over online pharmacy ads to suggest this issue was the same thing -- where somehow the company is getting rich off of "piracy." Lots of others attacked as well. None of it made much sense.
• That said, I was disappointed by Google throwing Wikileaks under the bus, by using the example of how MasterCard, Visa and Paypal starved Wikileaks for cash, leading that site to shut down. Defining Wikileaks as a rogue site certainly raises some questions. I understand why it may have served as a useful example, but...
• Once again, disappointed that Maria Pallante, Register of Copyrights, seems so out of touch on this issue. She kept insisting that there was no problem with the bill, no liability issue, no change to the DMCA, etc. That's clearly not true. It's a shame. She should be better on this.
• And... that's about it. Nothing too surprising came out of the hearing, but it was interesting... And it certainly has driven a lot of new interest in the bill and its consequences.

Filed Under: copyright, darrell issa, hearing, judiciary committee, sopa, zoe lofgren
Companies: google, mpaa

Rep. Darrell Issa Joins Rep. Lofgren In Saying That SOPA Is A Bad Idea

from the bipartisan dept

Supporters of SOPA and PROTECT IP love to claim that their bills are "bipartisan," but it appears that there's also some pretty serious bipartisan agreement that those bills are dangerous over-regulation of the internet. We'd already mentioned Rep. Michele Bachmann coming out against the SOPA/PROTECT IP approach to regulating the internet, and now Rep. Darrell Issa, head of the powerful Committee on Oversight and Government Reform has joined with Rep. Lofgren to express their concerns about SOPA. The two sent a "bipartisan" letter to their colleagues in the house, pointing to the LA Times article about many of the problems with SOPA, and argued that this is exactly the wrong approach at the wrong time:

H.R. 3261 unfortunately does not follow a consensus-based approach. It would give the government sweeping new powers to order Internet Service Providers to implement various filtering technologies on their networks. It would also create new forms of private legal action against websites—cutting them off from payment and advertising providers by default, without any court review, upon a complaint from any copyright owner, even one whose work is not necessarily being infringed.

Online innovation and commerce were responsible for 15 percent of U.S. GDP growth from 2004 to 2009, according to the McKinsey Global Institute. Before we impose a sprawling new regulatory regime on the Internet, we must carefully consider the risks that it could pose for this vital engine of our economy.

Nice to see more folks in Congress realizing that just because one industry wants to regulate the internet heavily, it doesn't mean it's actually a good thing for the rest of the economy -- and especially for the sector of the economy that's actually creating jobs and economic growth.

Filed Under: copyright, darrell issa, innovation, sopa, zoe lofgren

Darrell Issa Tells IP Czar That She's 'Not Trying' If She Can't Pin Liability For File Sharing On Third Parties

from the the-law-doesn't-matter-apparently dept

Not much in the way of details but Thomas O'Toole reports (via Twitter) that Rep. Darrell Issa, who last fall had indicated he was worried that overly draconian copyright laws might stifle innovation, is now apparently pushing for even more draconian copyright laws. He apparently told IP Czar Victoria Espinel that she's "not trying" if she can't figure out a way to prosecute credit card companies who process transactions for "pirate" sites. It's kind of funny that Rep. Issa would say he's worried about stifling innovation... but then pushes for third party liability rules and prosecutions that would absolutely stifle innovation.

If he really wants the government to go after credit card companies with criminal lawsuits for the actions of some of their customers, that's simply going to lead those companies (and others) to be a lot stricter in terms of whom they work with. It could prevent plenty of perfectly legitimate companies from being able to offer transactions, because the credit card companies don't want to take the risk that one of those sites might just possibly be labeled an infringer. The chilling effects here would be massive. We have the safe harbors for third parties in the DMCA and the CDA for a damn good reason: because we should place liability on parties actually responsible, not on third parties who will then react by clamping down and denying important services to perfectly legitimate sites.

Filed Under: darrell issa, secondary liability, victoria espinel

Rep. Issa Wants List Of Everyone Who's Filed FOIA Requests; Increasing Transparency Or Chilling Future Requests?

from the depends-on-how-you-look-at-it dept

Rep. Darrell Issa, the new head of the House Oversight Committee recently requested that all of the various federal agencies give him all sorts of data about everyone who's sent a Freedom of Information Act Request for the past five years. He claims that this is to review how the agencies respond to such requests, and hopefully make the process work even better. And, in fact, many transparency advocates are hopeful that this will lead to greater transparency, if the somewhat flawed FOIA process can be made better. However, others are viewing the whole exercise in a much more nefarious light, suggesting that Issa is creating chilling effects, by looking closely at who's filing such requests.

It seems like the latter response may be a bit of an overreaction. The government already has this information and is it really problematic for someone to compile all the info to see who's filing such requests? There obviously could be some serious concerns if there's any form of retaliation, but there's no indication of that happening (or being likely to happen). While it should be watched, if this process really is about getting the government to really be more open, then that sounds like a good idea.

Filed Under: chilling effects, darrell issa, foia, freedom of information, transparency

Rep. Darrell Issa -- Who Says Investigating Wikileaks Is A Priority -- Sets Up His Own Whistleblower Site

from the say-what-now? dept

There seems to be a bit of confusion among the new leadership in the House concerning just what Wikileaks does. Just over a week ago or so, we noted that Rep. Darrell Issa, who is heading the "oversight committee" had declared that investigating Wikileaks was a major priority for Congress, because if the US government didn't attack back at Wikileaks, the world would "laugh" at how the US had become a "paper tiger."

And yet... days later, Issa has announced his very own "whistleblower" site, in which he's asking government officials and the public to blow the whistle on government fraud and abuse.

This is, apparently, not a joke.

So he's attacking Wikileaks -- which does the same thing, asking people to highlight fraud and abuse worldwide -- and then sets up his own website to do the same thing. Maybe he just didn't want the competition? Of course, some will point out that there are serious differences. Wikileaks releases certain things it receives publicly. It's not at all clear what Issa will do with whatever he receives. Of course, that seems to make Wikileaks seem like a lot more effective solution if you're really trying to expose government fraud and abuse.

Filed Under: darrell issa, whistleblowing, wikileaks
Companies: wikileaks

New Congressional Leadership Prioritizes Wikileaks Investigation

from the how-about-not-covering-up-stuff? dept

We had high hopes after a recent Congressional hearing about Wikileaks, which appeared to focus more on the problem of overly secretive government rather than just blaming Wikileaks, that perhaps the US wouldn't go too far in its overreaction to the site. However, with a new leadership taking over Congress this week, apparently they've decided to prioritize investigating Wikileaks and are making the whole thing political, suggesting that the Justice Department has been "too slow and too weak" in dealing with the site. Rep. Darrell Issa, who is heading the "oversight committee," claims that the US government must do something about Wikileaks or "the world is laughing at this paper tiger we've become."

That makes no sense. So far, nearly all of the international response we've seen about Wikileaks has been focused on just how incredibly hypocritical the US has been in its response -- promoting freedom of the press and a free internet elsewhere, but then freaking out about Wikileaks at home. Pushing a politically motivated attack on Wikileaks will just make this issue worse in the eyes of the international community and seems unlikely to benefit the US in any way. If the world is laughing at the US over anything, it's about its childish and counterproductive response to Wikileaks, demonstrated specifically by Darrell Issa's statements and prioritization of Wikileaks as an issue.

If anything should be prioritized, it should be a review of why the government is being so overly secretive on matters where it should not be.

Filed Under: darrell issa, investigation, politics, wikileaks
Companies: wikileaks