Marketing

SOPA Conflicts Bubble Up

11/21/2011 12:01 AM Eastern

Washington — Nothing since the height
of the network-neutrality debate has provided
more rhetorical punches and counterpunches
here than last week’s hearing on the
Stop Online Piracy Act.

Letters were crossing in the electronic ether
from consumer-electronics companies, venture
capitalists, consumer groups and Internet
companies, some characterizing the bill’s
backers as “the Attack of the Internet Killers.”

Ironically, the run-up to the Nov. 20 trigger
for those network-neutrality rules was approaching
with little fanfare (“Net Zero,” Nov.
14, 2011). But that wasn’t the case with
the debate over how much power content providers
and the government should have to take
down those who illegaly copy and distribute
movies and TV shows, not to mention counterfeit
medicine distributors and other scammers.

WAR OF WORDS

It was a war waged with words to the government,
pitting the Northern California
behemoths of Google and Yahoo! against
the Southern California muscle of major
Hollywood studios and networks. The focal
point was a House Judiciary Committee
hearing, not even a markup or vote, on
SOPA.

Public-interest groups including Public
Knowledge were seeking a seat at the witness
table at that hearing and complained that it
lacked their perspective. The hearing featured
six witnesses, five of which supported the legislation.
Only Google argued for a different approach.

Meanwhile, a group of Web powerhouses
including Google,
Facebook, eBay and
Yahoo! sent a letter
to the heads of the
House and Senate Judiciary
Committees
taking issue with both
SOPA, and its Senate
predecessor, the PROTECT
IP Act.

SOPA was introduced
as a companion
to PROTECT IP,
which was aimed at
off shore websites, but
goes beyond that bill
to include U.S.-based
sites alleged to be infringing.
Both bills
are intended to give
the government and industry, including Internet-
service providers and search engines,
more power and responsibility to pursue online
content pirates. Bill opponents say they
agree with that goal, just not with how Congress
is currently proposing to go about it.

“Unfortunately, the bills as drafted would
expose law-abiding U.S. Internet and technology
companies to new uncertain liabilities, private
rights of action, and technology mandates
that would require monitoring of websites,” the
Silicon Valley companies, including
Google, wrote to top House members
last week.

The companies said they were
particularly concerned the bills
would undercut a safe harbor in
the Digital Millenium Copyright
Act that protects companies that
make a good-faith effort to remove
infringing content from their sites.

Google has been vocal about the
need for search engines to reflect
the Web world as it is, including
sites that offer pirated content.
At the hearing last week, Google
policy counsel Katherine Oyama
told the legislators that if a
piece of content is on the Web, it
is going to show up in search, and
taking down websites merely on
suspicion of infringement or targeting
an entire site for just one
post was not the right approach.

Rather, Google favors a “follow the money”
approach of choking off ad dollars or payments
to infringing sites.

“We cannot support these bills as written
and ask that you consider more targeted ways
to combat foreign ‘rogue’ websites dedicated to
copyright infringement and trademark counterfeiting,
while preserving the innovation and
dynamism that has made the
Internet such an important
driver of economic growth
and job creation,” the companies
wrote.

The SOPA bills are supported
by a host of content providers,
including major studios
and networks, as well as such
unions as the American Federation
of Radio and Television
Artists, the Screen Actors
Guild and the International
Alliance of Theatrical and
Stage Employees.

They also have bipartisan
backing in the House Judiciary
Committee, which was obvious
last week.

In fact, the bill’s critics may
have overplayed their hand with the volley of
rhetorical fire. Several committee members,
Democrat and Republican, took issue with the
hyberbolic echo chamber of charges that the
bill was going to kill the Internet, saying it did
not help the debate.

BLUNDERBUSS OF A BILL

Public Knowledge suggested the bill was a
blunderbuss that would do collateral damage
to the economy and civil liberties, suggesting
it might even give ISPs a chance to
violate the FCC’s network-neutrality rules
with impunity. That’s because providers
could “cut off a website through claims
of copyright infringement,” said Public
Knowledge president Gigi Sohn, if they
wanted to discriminate against the site
and then have immunity from any claim in
court or complaint at the FCC.

Google was the target of much criticism
during the hearing for its opposition to the
bill as currently constituted. Some legislators
characterized the debate as a fight among
giants, with Hollywood on one side and big
tech companies on the other.

“When elephants fight, it is the grass that
suffers,” said Rep. Mel Watt (D-N.C.).

Motion Picture Association of America executive
vice president Michael O’Leary suggested
that was an oversimplification, and
countered that IP protection affected jobs
and content creators of all sizes and locales.

LICENSE TO BLOCK?

Tech companies and network-neutrality fans are concerned
that section 104 of the Stop Online Piracy Act
could be used as cover for discriminating against Web
sites on the pretext of combating piracy:

“No cause of action shall lie in any Federal or State court
or administrative agency against, no person may rely in any
claim or cause of action against, and no liability for damages
to any person shall be granted against, a service provider,
payment network provider, Internet advertising service,
advertiser, Internet search engine, domain name registry,
or domain name registrar for taking any action described in
section 102(c)(2), section 103(d)(2), or section 103(b) with
respect to an Internet site, or otherwise voluntarily blocking
access to or ending financial affiliation with an Internet
site, in the reasonable belief that — (1) the Internet site is a
foreign infringing site or is an Internet site dedicated to theft
of U.S. property; and (2) the action is consistent with the entity’s
terms of service or other contractual rights.”

September