New bill counters SOPA, PIPA overkill

OPEN strives to control IP theft without breaking Internet

The Stop Online Piracy Act (SOPA) is now being countered by a new House bill that promises IP theft enforcement without many of the problems associated with SOPA.

A while back, I had a moment of civic activism and actually wrote a letter to my Congressman, Rep. Joe Donnelly, about the problems I perceived with SOPA, the House bill intended to shut down or otherwise hamper websites that illegally host copyrighted content.

Much of what I said to Donnelly was parsed material from my earlier blogs on the subject of SOPA. The point of my note to Rep. Donnelly was basically to educate him on the problems of SOPA and its companion bill in the Senate, the Protect IP Act (PIPA): namely, that the law grants unilateral power to copyright holders to take down web sites on the basis of very little evidence and due process, as well as punish the ISPs and web hosting companies through which such sites are hosted. Not to mention that the whole methodology of blocking sites from domain name servers was completely flawed: how hard is it for determined content downloaders to type 194.71.107.15 versus thepiratepay.org?

The response was a bit predictable: a form-ish looking reply that highlighted the importance of the U.S. copyright laws and one of the U.S.'s primary resources is the creativity and innovation of its intellectual property:

"I believe America's competitive edge comes from our nation's unmatched capacity for innovation. As the global economy becomes more integrated and emerging countries invest in newer technologies, we must doggedly protect our intellectual property (IP). For example, Chinese manufacturers have in recent years blatantly stolen technologies and designs created by Hoosier businesses. In response, last Congress, I helped enact a new law that will better coordinate U.S. agencies' and government efforts to not only protect our IP, but pressure other countries like China that do not do enough to crack down on and deter IP theft. If creativity, hard work and innovation are not protected and rewarded, our future ability to lead is threatened."

I should have expected this; Donnelly has been a champion for preventing intellectual property theft for quite some time. In 2008, he co-sponsored the Intellectual Property Rights Enforcement Act (H.R. 3578), motivated at least in part by a local businessman's discovery of his company's presence at a Chinese trade show in 2002--a booth manned by no employee of the company in question, and yet blatantly selling the company's goods.

It would also be pertinent to point out, like most members of Congress, Rep. Donnelly has received campaign funding from the media industry. Specifically, a total of $25,480 from the Movie/TV/Music sector across the three election cycles in which he has run for office, according to OpenSecrets.org.

But, to be fair, Donnelly gets a lot lot more finding from unions and manufacturing interests, which makes a lot of sense given the economy of this region.

I am not really upset with Donnelly's stance, given his long-standing views on IP theft before SOPA came along. But his response is still a bit disappointing, because he seems to have bought into the line of reasoning pushed so heavily by the media industry in their quest to enact SOPA and PIPA: piracy must be stopped at all costs.

Here's the thing: it is a laudable goal to try to stop content piracy. As a producer of IP myself, nothing irks me more than seeing my content under someone else's byline. It's an indirect effect: while I will still likely get paid by my publisher, the theft of my content adversely affects my publishers, and if they are damaged it could ultimately effect their business to the point where they will have to cut back on hiring me and writers like me.

But this whole "at all costs" thing? That's where I think we should pause for a bit and understand what that means.

For SOPA, it means a serious short-circuiting of due process, and the presumption of guilt first. It also means a law that can--and likely will--be easily abused will be put into place and put the U.S. right up there with China and Iran for Internet censorship.

What gets me even more upset is that when all is said and done, this particular solution will not work. This whole scheme is akin to closing a few key interstate exchanges just to prevent a few trucks smuggling goods from coming through… and completely ignoring the fact that the criminals will simply drive their trucks somewhere else.

If Congress is truly interested in stopping online piracy, they should try pushing laws that might actually work. The recently-introduced Online Protection and Enforcement of Digital Trade (OPEN) Act, could be such a bill. OPEN shifts enforcement of IP violations to the International Trade Commission, which knows a thing or two about IP enforcement.

Both the Recording Industry Association of America and the Motion Picture Industry of America dislike the OPEN Act, citing the ITC's slower response times, since (in their opinion) the ITC typically deals with patent issues on a slower timetable. Citing the lengthy RIM vs. Kodak proceedings, RIAA Sr. Executive VP Mitch Glazier wrote:

"The case, originally filed in January 2010, now anticipates a ruling in September 2012. The delay now means that the ITC will have taken 33 months to decide on a high-stakes and time-sensitive issue. So this is the 'expedited' process SOPA opponents are embracing as an alternative in the proposed OPEN bill...?"

"Why in the world would we shift enforcement against these sites from the Department of Justice and others who are well-versed in these issues to the ITC, which focuses on patents and clearly does not operate on the short time frame necessary to be effective? In addition, the remedy traditionally offered by the ITC--an exclusion order to prevent foreign criminals from accessing the US market--is precluded under the OPEN Act."

Glazier's point might stick, except for the ITC's mission would surely be augmented if the OPEN Act were passed, so I don't really think the timeframe argument is anything but smoke. No, the RIAA, MPAA, and other SOPA proponents down't like the fact that under OPEN, the ITC's remedy on IP violation "merely" compels payment providers like Visa and PayPal to cut off funding to such sites. Safe harbor provisions are still left in place, which media companies don't like at all: they want to be able to put the fear of $Deity in web hosts and have them start enforcing copyright infringement on behalf of those same media companies.

Online piracy is a problem, to be sure (though one can argue the true scope of the issue). And while I am willing to let the government take its best shot in enforcing IP theft, I don't think any of us should be willing to let the media companies run a vigilante crusade on online piracy, with them and the website hosts they can intimidate taking the lead on enforcement.

There are numerous examples in U.S. history where letting private industry enforce the laws of the land have turned out to be very, very bad. The Homestead Strike in 1892 and the Ludlow Massacre of 1914 come to mind. Is this kind of disruption and chaos something we are willing to see happen again?

Billions of dollars of legal commerce happen on the Internet everyday. Let's not disrupt the flow of such commerce to overprotect the interests of a few.

Read more of Brian Proffitt's Open for Discussion blog and follow the latest IT news at ITworld. Drop Brian a line or follow Brian on Twitter at @TheTechScribe. For the latest IT news, analysis and how-tos, follow ITworld on Twitter and Facebook.

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