While thousands of tech vendors frantically demoed new gadgets and apps at the giant Consumer Electronics Show in Las Vegas, a debate over the future of the Internet and how the government may regulate distribution of (often pirated) content was taking place down the hall.
As Ars readers know, bills like the Stop Online Piracy Act (SOPA) and the Online Protection & Enforcement of Digital Trade Act (OPEN) offer competing approaches to cracking down on piracy. But SOPA, introduced in the House of Representatives, and a similar Senate bill called the Protect IP Act (PIPA) have garnered scorn for potentially placing technical barriers on the Internet and even harming parties that have no intent to break the law. Copyright groups, in turn, think OPEN—which takes a "follow the money" approach, putting power in the International Trade Commission rather than the Department of Justice—won't do enough to protect owners of copyrighted material.
With all three bills under debate by our elected leaders, CES convened a panel including Congressional staff members, a musician, lawyers, a Web hoster, and a representative of the Copyright Alliance. It was moderated by Rick Boucher, a Democrat who represented Virginia's 9th congressional district in the House for 28 years ending in 2011.
"While I really don't miss being in Congress, I really do miss being on the House Judiciary Committee and being able to take part in this particular debate," Boucher said in introduction.
As Boucher explained, while PIPA and SOPA differ in some ways, they both would give the government ability to designate rogue websites, remove those sites from the Internet's domain name system, require search engines to remove the sites from results, prevent advertisers from doing business with the "rogue" sites, and lessen protections currently provided to site owners during Digital Millennium Copyright Act (DMCA) takedown processes.
OPEN, on the other hand, tries to tackle piracy by cutting off the money supply to people who profit from illegal distribution of copyrighted material, he said, while noting that the same "follow the money approach" is similar to what Congress has applied to online gambling. This enforcement mechanism has worked "reasonably well," Boucher said.
The argument for SOPA
Among six panelists, there was just one pushing SOPA and Protect IP: Sandra Aistars, executive director of the Copyright Alliance. Most panelists seemed to agree that a recent amendment to SOPA has fixed some problems with the bill and narrowed its scope, although Aistars was the only one favoring the bill on the whole.
Aistars said the current bill is "very narrow in targeting only sites designed or operated for distributing complete copies of copyrighted works in an infringing manner for purposes of financial gain." The bill would not sweep in sites like Facebook, Twitter, LinkedIn or Reddit, she said, and doesn't impose technology mandates on site operators.
OPEN, on the other hand, would create a costly process through the ITC for taking down infringing content, a process that would be too costly for indie filmmakers, songwriters or other artists to pursue. She also said SOPA will help protect consumers from purchasing illegally distributed physical goods that could be harmful to them, like poorly manufactured smoke detectors and drugs that don't contain the proper active ingredients.
"One thing I'm concerned about is this is being portrayed as a Hollywood vs. tech industry debate, and it's far broader than that," she said. In addition to consumers, she said "rogue websites affect small businesses and entrepreneurs across the country."
Basically, no one on the panel agreed with her. On the panel was Jayme White, a staffer for Sen. Ron Wyden (D-OR), the co-sponsor of OPEN. White is also staff director of the Subcommittee on International Trade, Customs, and Global Competitiveness.
SOPA could "break" the Internet
"Our overarching concern over PIPA is it takes an at-all-costs approach," White said. "It doesn't matter if you start breaking part of the Internet, that it doesn't matter if you start making the Internet less of a platform for innovation, as long as you combat IP [violation] in the way opponents of the legislation want to combat it." Further, he said, the scope of Protect IP is such that "it potentially captures websites that have a legitimate purpose, specifically the definition of a rogue website could capture Internet sites where there's user-generated content, where there's a free exchange of ideas, speech and perhaps some links that go to some sites the content industry doesn't like."
The panel also included Ryan Clough, legislative counsel for the Office of Rep. Zoe Lofgren (D-CA); Christian Dawson, COO of managed hosting vendor Servint; Casey Rae-Hunter, a musician and Deputy Director of the Future of Music Coalition; and Lateef Mtima, a professor of law at Howard University.
Clough said SOPA and Protect-IP create an architecture for Internet censorship. "Once we create this system, there is no way it will be contained to copyright infringement," he said. Further, he argued "this bill will make it easier for China to keep imposing the types of controls on the Internet that it does and to keep resisting international pressure against it."
Dawson argued on behalf of small businesses with online presences. He claimed that five to ten percent of DMCA takedown notices already are fraudulent ones, and that SOPA will only boost the number of wrong accusations and penalties levied against legitimate businesses. The pirates, on the other hand, will be ready with technology workarounds and escape penalties, he argued.
Rae-Hunter opposed the notion that SOPA is good for content owners, particularly independent ones. "The trade organizations representing the content industry simply do not represent all creators," he said. "Because of the open Internet, we are now seeing what a legitimate digital marketplace looks like and seeing increased consumer interest in legal, licensed services. It is that very ecosystem that could be threatened by legislation like SOPA."
For one thing, artists often use cyberlockers to share files with each other, legally, but those sites could be threatened, he said.
Mtima, noting that he is an IP lawyer, compared the debate to a shootout in an old western, in which stray bullets hit innocent bystanders. He also questioned the logic of combining the fight against pirated digital content with the fight against illegal sales of fake prescription medication. While Aistars argued the same types of sites perpetrate both crimes, Mtima said the harm caused by each one is fundamentally different.
The panelists were also asked for predictions on the legislative process. White said "If Protect-IP is stopped in the Senate, our view is that SOPA is dead in the House." Because of widespread opposition, the bills have become "extremely toxic politically," and he warned against acting too fast on either SOPA or OPEN. "This isn't the PATRIOT Act. We don't have to act too fast here," White said.
Clough, meanwhile, said there are enough votes to get SOPA out of the Judiciary Committee. But opponents have a chance to block it. "At the very least, in the House we've gone from thinking a bill like this would sail through very quickly to one in which there is at least uncertainty," he said.
A final note on Internet openness
Although this panel we've just described was advertised publicly and open to CES attendees and press, White asked not to be quoted publicly in news stories. Before he delivered his quite public remarks, he said "First let me say my remarks are off the record, so please don't quote me. I used to work for a member of the House, who said 'I can get into as much trouble in the press as I need to without you making it more difficult for me.' But if there's something you want to report on we can talk after this."
Rae-Hunter scoffed at that request, introducing his own remarks by saying "Everything I say can be taken on the record so we can drop the pious baloney." Given that Rae-Hunter argued on behalf of Internet openness, this seemed appropriate.
Wyden's office tells Ars that White's statements were not off the record (which is good, because we were planning to quote him anyway). Rather, White was simply concerned his statements would be portrayed as being made on behalf of the senator, when in reality White is a policy expert and his opinion stands on its own. In any case, opponents of SOPA and Protect-IP should be cheered by both White's and Wyden's opposition to the bills.
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