The House Judiciary Committee today held an important hearing on the Stop Online Piracy Act with a hugely stacked deck of witnesses—Google's lawyer was the only one of the six to object to the bill in a meaningful way. And it wasn't hard to see why. This wasn't a hearing designed to elicit complex thoughts about complex issues of free speech, censorship, and online piracy; despite the objections of the ACLU, dozens of foreign civil rights groups, tech giants like Google and eBay, the Consumer Electronics Association, China scholar Rebecca MacKinnon, hundreds of law professors and lawyers, the hearing was designed to shove the legislation forward and to brand companies who object as siding with "the pirates."
How low was the level of debate? The hearing actually descended to statements like "the First Amendment does not protect stealing goods off trucks" (courtesy of the AFL-CIO's Paul Almeida).
Right from the start, the knives were out for Google. Committee Chairman Lamar Smith (R-TX) made it only halfway through his opening statement before asserting that "one of the companies represented here today has sought to obstruct the Committee’s consideration of bipartisan legislation. Perhaps this should come as no surprise given that Google just settled a federal criminal investigation into the company’s active promotion of rogue websites that pushed illegal prescription and counterfeit drugs on American consumers."
SOPA would require search engines, payment processors, ISPs, and ad networks to block access to "rogue websites" on a judge's order. While critics have raised serious concerns about how this could affect the Internet's domain name system, affect free speech, and sweep in a host of legal sites, the bill's backers suggested that it was really just about money. Google didn't want to stop piracy because it made so much money from it.
"Given Google’s record, their objection to authorizing a court to order a search engine to not steer consumers to foreign rogue sites is more easily understood," Smith said. (Much later in the hearing, a fired-up Zoe Lofgren [D-CA] said that "impugning the motives of the critics rather than engaging in the substance is a mistake" and that she was troubled by the panel's makeup.)
As for the panelists, most portrayed SOPA as eminently reasonable. And hey, if SOPA breaks something as important as the move to the more secure DNSSEC protocol, no problem—we can just rewrite the protocol.
"This argument [that SOPA will harm DNSSEC deployment] conveniently ignores not only the history of the creation of DNSSEC but also the very nature of Internet protocols, which is simply this: when new developments or circumstances require changes to these codes, the codes change," said MPAA's Michael O'Leary. Putting Hollywood in charge of setting Internet protocol standards: what could possibly go wrong?
It was up to Google alone to make the argument that SOPA's definition of "rogue sites" is poor, that its remedies are extreme, and that plenty of legitimate sites could be targeted. One has only to think of YouTube, which even without SOPA is being sued by Viacom for $1 billion and would certainly have been hammered years ago under SOPA's crazy language (sites can be dismantled under SOPA if they take "deliberate actions to avoid confirming a high probability of the use of the US-directed site to carry out acts" of infringement. What does that even mean? And how does it fit with existing robust safe harbors for user-uploaded content sites?)
O'Leary of the MPAA smirkingly took on his (largely absent) opponents by saying that SOPA critics were engaged in hypocritical hyperbole and were pro-piracy—as though the long history of the US content industries had just disappeared down the memory hole (Jack Valenti, anyone? The VCR as Boston Strangler? The reason "Hollywood" is in California at all? Rampant 18th and 19th century book piracy? Attacks on HDTV? Attacks on the DVR? Attacks on MP3 players?)
Not every penalty fits every crime
Groups that weren't invited to speak at the hearing vented afterwards. "This lack of speaking and listening has been a continued frustration and led to such a flawed bill," said CCIA chairman Ed Black. "I’d liken it to killing mosquitoes with an uzi, but at least the uzi hits its target. This bill will fail to actually stop traffic to infringing sites and will Balkanize Internet traffic, sending the real pirates to foreign DNS servers that can’t easily be monitored."
The Consumer Electronics Association, which was apparently denied a chance to participate in the hearing, also pulled no punches. "The bill attempts a radical restructuring of the laws governing the Internet," said CEO Gary Shapiro. "It would undo the legal safe harbors that have allowed a world-leading Internet industry to flourish over the last decade. It would expose legitimate American businesses and innovators to broad and open-ended liability. The result will be more lawsuits, decreased venture capital investment, and fewer new jobs. The significant potential harms of this bill are reflected by the extraordinary coalition arrayed against it. Concerns about SOPA have been raised by Tea Partiers, progressives, computer scientists, human rights advocates, venture capitalists, law professors, independent musicians, and many more. Unfortunately, these voices were not heard at today's hearing."
Over in the Senate, people like Ron Wyden (D-OR) watched the "not entirely fair and balanced" hearing with horror. Wyden, who helped author the key Internet safe harbors that have keep sites like Google, Yahoo, and eBay from being sued into oblivion for the actions of others, submitted a statement of his own. "We took the opportunity to pass a law that said that neutral parties on the net are not liable for the actions of bad actors," he wrote. "So now, as we again debate Web censorship, let's ask ourselves: what next generation of innovations won't be realized if we backtrack on that principal now? Yes, the Internet needs reasonable laws and bad actors need to be pursued, but the freedoms of billions of individual Internet users should not be sacrificed in the interest of easing that pursuit."
Perhaps the irony in all this is that Hollywood itself emerged from a world of piratical behavior to become a dominant American industry—but draconian IP enforcement could have stagnated the industry for decades. In the same way, today's piracy problems can certainly be dealt with in a much more measured fashion; protecting Hollywood now simply can't be worth killing off the next YouTube. As for the truly bad actors, even Google supports measures to go after their sources of revenue with a court order.
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