Legislative fights are like icebergs: a lot happens underwater for every issue that breaks through to the surface. Legislative battles over intellectual property rarely evolve to the point of making front-page headlines as they did in the case of the Stop Online Piracy Act (SOPA).
SOPA became a lead story because it represented not just a battle among industry sectors over policing the Internet for copyright infringement, but an ongoing fight over the future of the Internet that impacts millions of users.
The public saw the House Judiciary Committee wrangle over cyber security and private censorship provisions during the markup of SOPA in December 2011. Tech reporters and bloggers wrote about how lawmakers—some of whom did not appear to understand how the Internet worked—were pushing legislation that would drastically regulate the web. Public outrage built up over the holiday break until the Internet blackout in mid-January 2012 became a top story on CNN and other major news outlets.
But the key underlying debate had been building for nearly two decades. The central question of that debate is to what degree Internet companies and businesses should become privatized Internet police.
While this debate wore on, the Internet itself continued to change. The Internet is no longer composed primarily of static websites that offer information to users. Today, the successful business model for many of the companies that my organization, the Computer and Communications Industry Association, represents is to build platforms that empower Internet user participation.
This question of deputizing Internet companies to monitor their users is anathema to industry for a few reasons. First, no one wants to be in the business of spying on customers. Second, business models that empower millions of users’ communications and commerce would no longer be viable if companies had the added mandate to thoroughly police that sheer volume of content. Nevertheless, politically established corporate rights holders—from Hollywood, to the recording industry, to the Chamber of Commerce—have long sought to shift to online platforms the cost and responsibility of identifying material that may have infringed intellectual property rights.
Some History
Four years before the SOPA standoff, the online copyright issue first gained traction on Capitol Hill among a few members of Congress who were preparing to introduce rights-holder-backed legislation called the Combating Online Infringement and Counterfeiting Act. (COICA). The bill would have created blacklists of websites and the U.S. Attorney General would have then required Internet service providers, advertisers, and others to stop doing business with these sites.
This proposal would have weakened the Digital Millennium Copyright Act (DMCA) “safe harbor” provision that gives Internet companies legal protection from liability for what others do on their sites—as long as companies quickly remove infringing content once it is reported. With COICA, copyright extremists instead wanted Internet platforms to proactively guess whether content might be infringing, and risk prosecution if they failed to remove it.
The lobbying challenge for technology companies was to combat misinformation about the scope of the infringement problem and to offer appropriate remedies that wouldn’t have broad consequences for legitimate e-commerce or the smooth functioning of the Internet. Our industry explained that having a U.S. blacklist for seemingly legitimate reasons like combating piracy gives the green light to Internet restricting countries to have their own blacklists for more nefarious reasons. Such policy is at odds with our diplomatic agenda, which discourages Internet filtering and censorship.
In the case of SOPA and its Senate companion the PIPA, the entertainment industry asked Congress to require that tech companies take on the crippling responsibility of proactively monitoring and controlling all the content and conduct that passes, even momentarily, through their sites and services. This would be achieved by gutting the liability protections that current DMCA law provides to tech companies that quickly respond to notices of copyright violations and remove such content.
SOPA was even more heavy-handed than COICA and would have also conflicted with new security protocols the government developed to curb phishing and spam. It would have required Internet companies to redirect Internet traffic from sites users requested.
If SOPA were to have passed it is within reason to believe—depending on how the Courts interpreted “engage in, enable, or facilitate” copyright infringement—that Facebook posts, Twitter links, and really any Internet service or app that allows a user to post and others to view would have to screen material. A site like YouTube would need to preview the 72 hours of video uploaded each minute, and then approve the video. The companies would have to screen material either manually or using automatic filters with high false positive rates and no real way to check for “fair use.” They would have done this filtering either preemptively or very quickly after it was posted.
Among the biggest business-related negative impacts of SOPA would have been the increased liability concerns and monitoring costs not just for existing companies, but for the next Google, Facebook, or Twitter. SOPA would have made it far more difficult for new platform startups to get funded and reach commercial viability.
Tech companies were frustrated by the legislative campaign because they were already doing so much to respond to and remove infringing content. YouTube, for instance, offers watermarks to help rights holders track and identify copyright infringing content and Google demotes sites with high rates of illegal sharing. Others have taken creative steps to combat specific problems, like counterfeit drug sales online. Our companies correctly recognize that fake pharmaceuticals are a unique public health and safety threat that should take precedence over other commercial squabbles over trademarks, brands, patents, and copyrights.
Yet in addition to the lack of understanding among policymakers about these voluntary measures, there are often not similar questions being asked of the entertainment industry about what it’s doing to help solve the problem—aside from suing others and lobbying for laws like SOPA.
Much more could be done to further reduce piracy by following the models of iTunes and Netflix—offering legal content that consumers could easily buy online and watch or listen to on the device of their choice.
The Economics
The entertainment industry has spent years fighting innovation rather than capitalizing on the Internet’s role as a low cost distribution method.
The industry hoped to create a sense of urgency on Capitol Hill so the logic of its proposed solution—even greater control and censorship of the Internet—would not get much scrutiny. To do this they repeatedly used misleading data on piracy. Part of CCIA’s strategy to fight against SOPA-like legislation has been to deploy hard economic data to show the reality of the entertainment industry profits, online piracy and the collateral damage to other industries if SOPA were enacted.
An independent Government Accountability Office report in April 2010 showed that no reliable evidence or statistics exist to support the extreme claims of the entertainment industry of about $20 billion in losses from online copyright infringement.
The entertainment industry has actually thrived over the last decade and is not suffering from Internet abuse, as is sometimes claimed. The most recent evidence comes in “The Sky is Rising,” an independent study commissioned by CCIA that shows entertainment production is in a renaissance period. More content is being created and more money per household is being spent on entertainment than a decade ago—a 15-percent increase in fact. This renaissance has created new winners and losers however, and some established players, who have been disrupted, are seeking to secure through political measures what they’re losing in the marketplace.
In addition to not understanding the real scope of the piracy problem, those pushing SOPA both outside Congress and within did not consider the collateral costs to other industries and users that would have suffered under SOPA. These include news organizations, libraries, academic institutions, and other sectors that rely on fair use exceptions to
copyright rules. Released in 2007 and updated in 2010, CCIA’s Fair Use Study found the economic contribution of fair use industries is greater than that from the industries pushing SOPA. The economists from Capital Trade Inc. found that one out of eight U.S. workers is employed by a company that benefits from the protections afforded by fair use. And industries relying on fair use and other copyright exceptions make up one-sixth of the U.S. economy—a significantly higher portion than those industries claiming damage from online piracy.
Internet industry lobbyists, including company executives, spent countless hours in meetings on Capitol Hill explaining how the Internet actually works and advocating for more targeted, less draconian measures to curb the specific problem of foreign websites dedicated to piracy of U.S. copyrighted material. It was difficult for Internet industry CEOs to take the SOPA threat too seriously at first because it seemed so obviously wrongheaded. What they may have not fully realized then is that the political clout of the established corporate right holders in Washington put the Internet ecosystem at a severe disadvantage from the start. That meant that even solid legal and policy arguments delivered by very capable underlings would not be enough.
Company executives understood the scope of potential damage to the Internet and simply expected “the powers that be” would understand that and bring the legislation to a quick halt. It took several months for the senior management of very popular Internet companies to accept that no, Congress did not understand the Internet and yes, they were really going forward with the bill anyway.
A bipartisan group of House members had also urged lobbyists to get these Internet company CEOs to call them and be more personally public in their advocacy. This was of course to counterbalance CEOs in the politically established entertainment rights owner industries, which had already been doing so consistently. Members of Congress pay much more attention to CEOs, and to their underlings afterward, if the CEO has been in to visit. On the other hand, lobbyists tend to want to protect their CEOs from the rough and tumble of the fray as long as possible.
Many members of Congress seemed to naively believe that Google and Facebook were so all-powerful on the Internet that they could “fix anything” they really wanted to—if only they were willing. Of course even the most popular Internet sites do not control the underlying physical network infrastructure. Internet backbone networks and access providers do, but they are not supposed to be blocking or censoring anything either. That’s why a “follow the money and the perps” approach to cutting off operators of foreign websites dedicated to piracy is the only way to go. Witness MegaUpload and the irony that Kim Dotcom got arrested in New Zealand immediately after the legislation died.
Most members of Congress and staff were totally unaware that Google was already taking down thousands of items a day under existing copyright law—the DMCA. Many on Capitol Hill were simply unfamiliar with the DMCA statute itself. At first the oft repeated line “we just disagree with you” was code for “we have the votes to defeat you, so we don’t really need to refute your arguments on all this technical nerdy stuff.’’
But after the December House Judiciary Committee markup, in which members admitted they didn’t understand the impact of SOPA on cyber security or the Internet, some staffers and members were more receptive to hearing details about the collateral damage related to the wording of the bill. A staffer in one office was noncommittal about his member’s support, but did comment that we were the only ones to bring a copy of SOPA to their meetings.
In another case, CCIA lobbyists happened to be in the office with a staffer telling us his boss had not taken a position, when the Member walked in, and asked what our meeting was about. When the staffer says SOPA, an intern pipes up, “we’ve been getting tons of calls about it. It hasn’t stopped.” The Member replied, “I’m voting against this bill.” It seemed his staff was blind-sided: he’d made the decision on the spot. Learning of his constituents’ concerns had pushed him over on the issue—further proof that meetings might have influenced the analysis, but the grassroots were undeniably important.
In lobbying against COICA, SOPA, and PIPA, the CCIA engaged in countless meetings and briefings in Congress to explain the collateral damage to the security of the Internet. We were fortunately able to utilize letters from dozens of top Internet architects, engineers and cyber security experts, which raised serious concerns about the bills. As a young industry, we were slowly but surely nurturing a bipartisan group of champions of our own. These efforts helped focus attention on the technical and business pitfalls of the legislation and chip away at the structure and support for it. However, legislative staff questions and concerns were too often brushed aside in favor of a political agenda driven by a few well-connected constituents and special interest groups. This of course led to the huge “generational mistake” that was the crash and burn of SOPA/PIPA.
The letters, documents and news reports by tech beat reporters did help build a record. Fortunately, when Internet users awoke to a blackout in January 2012, they were quickly able to find that record and see that some in the House Judiciary Committee were ready to regulate the Internet without hearing from Internet experts, consumers, or even a broad swath of technology and fair use industries. Internet users could learn with a few mouse clicks that this action was proceeding against the advice of law professors, Internet engineers, cyber security experts, and a growing number of Internet companies—and they called their representatives.
My colleagues at CCIA and others in the trenches were grateful to have these experts willing to voice their opposition, and heartened by the growing awareness by companies not usually focused on policy battles. We all also owe a huge debt to a handful of key enlightened members of Congress, who took courageous stands for Internet freedom, who worked to block SOPA and PIPA until the significance and danger of the legislation became more clear to a wider group of companies, Internet leaders, and concerned Internet users.
Our industry and our users are also indebted to the public interest groups from Demand Progress to TechFreedom who sounded the alarm, drew the attention of Internet users, and encouraged them to make their voices heard in Congress. Had activists not rallied the cavalry, rights holders with longtime Washington lobbyists might have rammed these sweeping changes to the Internet through Congress before they started their holiday break.
The January 18, 2012 website blackouts were the subject of a question on popular television quiz show “Jeopardy.”
The Future
Based on my 30 years of fighting battles on behalf of innovation and Internet freedom, I don’t believe we’ve seen the last of this kind of bill. Too few members of Congress adequately understand the Internet, and the difficulties of protecting its core principles, and there is too little real understanding of the size, scope, and complexities of the problems surrounding online infringement. The legislative and legal framework that has nurtured the growth of the Internet evolved over several decades, based on the hard work of the few. To preserve that framework will also now require the constant vigilance of the many.
We need to communicate consistently with Congress about the realities and benefits of a free and open Internet. We also need to explain the proactive ways in which Internet companies can act as responsible corporate citizens in the matter of intellectual property protection. But the entertainment industry must also look at what else it can do to adapt its business and profit models to fully exploit the opportunities presented by the global Internet without trampling on the rights and legitimate concerns of others.
We need to have a better understanding of the real costs to industries of both the problem and the different proposed responses. Congress will then be in a better position to tailor legislative responses. Any proposed solutions must weigh the real seriousness and the scope of the problem, while minimizing collateral damage to other dynamic industries and to the Internet as a tool for communications and democratic activities.
The battle to preserve Interne
t freedom will probably never end. Democracy works best when participation is active and informed, as the Internet blackout and Internet user protests have demonstrated. The Internet community has been empowered to protect its vital interests. But since the disruptive power of the Internet will constantly challenge the entrenched status quo and politics as usual, such entrenched vested interests will always fight back.
This time, those willing to sacrifice Internet integrity and freedom for their own financial gain did not win. We are encouraged to see how many Internet users and stakeholders recognized the importance of the Internet as an engine for innovation, economic growth, and political participation—and were willing to take action to defend it.
NOT IN OUR NAME: ARTISTS STAND UP FOR EXPRESSION
CASEY RAE-HUNTER
Casey Rae-Hunter is a musician, recording engineer, educator, journalist and media pundit and the Deputy Director of the Future of Music Coalition, which took a strong stand against SOPA/PIPA. FMC is a national nonprofit organization that works to ensure a diverse musical culture where artists flourish, are compensated fairly for their work, and where fans can find the music they want. Rae-Hunter works alongside leaders in the music, arts, and performance sectors to bolster understanding of and engagement in key policy and technology issues, and has written dozens of articles on the impact of technology on the creative community.
Music and protest have a long shared history. From Woody Guthrie to Dead Prez, artists have stepped up and used their voices to push back against the forces that seek to limit freedom and speech. And why not? Artists depend on free expression to create their next great song, movie, novel, or even video game.
Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet Page 31