Tech Community Flexes Muscle, Senators Run For The Door
On Wednesday, tech giants (eg Google, Wikipedia, Craigslist, Reddit, Mozilla, the Cheezeburger network, Wired) played the role of Paul Revere, spreading the word that Congress was on the verge of passing a bill supported by (some say written by) the content industry, a bill that they argued would be the death of the Internet as we know it.
The two bills — Stop Online Piracy Act (SOPA) in the House and Protect IP Act (PIPA) in the Senate — have been positioned by the content industry (think movie studios, TV studios, the music industry) as essential tools in the “online piracy” battle.
The elected players: HR 3261 is sponsored by House Judiciary Committee Chairman Lamar Smith (R-TX) with 30 co-sponsors, including John Conyers (D-MI) and Mary Bono (D-CA). S 968 is sponsored by Sen. Patrick Leahy (D-VT) and 40 co-sponsors, including Sen. Roy Blunt (R-MO), Sen. Barbara Boxer (D-CA), Sen. Orrin Hatch (R-UT), Sen. Joe Lieberman (D-CT) and Sen. Tom Udall (D-NM). [Where do your Congress critters stand on SOPA/PIPA?]
Here are the reversals or public opponents in the Senate. Notice that they are primarily Republicans:
- Sen. Kelly Ayotte (R-NH), former co-sponsor
- Sen. Mark Begich (D-AK)
- Sen. Roy Blunt (R-MO), former co-sponsor
- Sen. John Boozman (R-AK), former co-sponsor
- Sen. Scott Brown (R-MA)
- Sne. Maria Cantwell (D-WA)
- Sen. Ben Cardin (D-MD), former co-sponsor
- Sen. Tom Coburn (R-OK)
- Sen. Bob Corker (R-TN)
- Sen. John Cornyn (R-TX)
- Sen. Jim DeMint (R-SC)
- Sen. Orrin Hatch (R-UT), former co-sponsor
- Sen. Jim Inhofe (R-OK)
- Sen. Mike Johanns (R-NE)
- Sen. Mark Kirk (R-IL)
- Sen. Jeff Merkley (D-OR)
- Sen. Jerry Moran (R-KS)
- Sen. Lisa Murkowski (R-AK)
- Sen. Rand Paul (R-KY)
- Sen. Jack Reed (D-RI)
- Sen. Marco Rubio (R-FL), former co-sponsor
- Sen. Olympia Snowe (R-ME)
- Sen. Pat Toomey (R-PA)
- Sen. David Vitter (R-LA), former co-sponsor
- Mark Warner (D-VA)
- Sen. Ron Wyden (D-OR)
Representatives who have bailed include Rep. Bruce Bailey (D-IA), Rep. Jeff Flake (R-AZ, running for Senate), Rep. Lee Terry (R-NE) Rep. Patrick McHenry (R-NC), Rep. Kenny Marchant (R-TX), Rep. Chellie Pingree (D-ME), Rep. Lee Terry (R-NE), Rep. Ben Quayle (R-AZ), Rep. Mike Rogers (R-AL), Rep. Adam Smith (R-WA), Rep. Joe Walsh (R-IL) and Rep. Kevin Yoder (R-KS). (See more from ProPublica, which is keeping a running list).
For a bit of humor (or irony) check out documented copyright violations on Congressional websites.
Follow the money. According to Open Secrets Leahy has received $371,806 in individual and political action committee contributions from the television, motion picture, and recording industries since 2007; he’s received $606,490 from lawyers. Smith has received $394,495 from the television, motion picture, and recording industries since 1989 and $423,009 from lawyers.
And collectively, the SOPA co-sponsors have raked in campaign contributions from the movie, music, and TV entertainment industries compared to software and internet companies. The ratio is almost 4-to-1 ($1,983,596 to $524,977).
Currently, PIPA is scheduled for cloture vote in the Senate on Tuesday; Paul (R-KY) and Wyden (D-OR) have promised a filibuster. However, House Speaker John Boehner (R-OH) says SOPA isn’t ready for a vote. [See how SOPA/PIPA would affect you.]
Lawmakers may have their own parochial interests or lofty causes, but first and foremost they’re always looking for votes. To get votes, they need attention and money — something that corporate lobbyists can dish out in abundance. The end product of this system is lawmaking that’s less about making good public policy and more about appeasing the hands that feed — as a result, powerful corporations with deep pockets gain unparalleled access to members of Congress, and they help set the agenda. That agenda is why bills like SOPA and PIPA gain such traction — they were delivered to Congress in return for money and votes.
A History Of Bills To Expand/Protect Rights
The U.S. Constitution codifies copyright:
Article I, Section 8, Clause 8:
[Congress shall have the power] to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
Ironically, the copyright infringers of the 19th century were headquartered in NYC. Harper Brothers (now HarperCollins, part of the Murdoch empire) “printed pirated copies of works by such British authors as Charles Dickens, William Make-peace Thackeray, and Anne, Charlotte, and Emily Brontë.
Because international copyright laws were not enforced, U.S. publishers did not pay royalties to either the British authors or their publishers. The American market had grown to be so significant that, in 1842, Dickens traveled to the United States in an effort to secure royalties from the sale of his works. He was unsuccessful at recouping this money, but the trip did give Dickens the material for his book American Notes for General Circulation, which Harper Bros. promptly pirated.
Nevertheless, PIPA/SOPA are the latest in a long line of bills/legislation (and law suits) designed to protect the content industry, to allow it to extend (think of these acts as “fingers in dikes”) its eroding monopoly market position. Congress has systematically extended the life of copyright to the point where “limited” exists only in the wildest imagination.
- 2010: Combating Online Infringement and Counterfeits Act (not law)
- 2010: Internet Investment, Innovation, and Competition Preservation Act (not law)
- 2008: Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act (not law)
- 2007: Intellectual Property Rights Enforcement Act (not law)
- 1999: Digital Theft Deterrence and Copyright Damages Improvement Act
- 1998: Sonny Bono Copyright Term Extension Act (extended protection term from life of the author plus 50 years to life of the author plus 70 years.
- 1998: Digital Millenium Copyright Act (established safe harbors for online service providers, prohibits technology designed to circumvent copy protection)
- 1992: Audio Home Recording Act of 1992
- 1992: Amendment to Section 304 of Title 17 (making copyright renewal automatic)
- 1990: Circulation of Computer Software (prohibited commercial lending of computer software)
- 1984 : The Betamax case; the Supreme Court ruled that it’s legal to make copies of copyrighted material for personal use
- 1976: Revision of the U.S. Copyright Act (extended protection term to life of the author plus 50 years; works for hire protection extended to 75 years).
- 1909: Revision of the U.S. Copyright Act (extended protection to 28 years with a possible renewal of 28 years for a total of 56 years).
- 1891: International Copyright Treaty
- 1831: Revision of the Copyright Act (extended protection to 28 years with a possible renewal of 14 years for a total of 42 years).
- 1790: 1790: Copyright Act of 1790 (extended protection to 14 years with a possible renewal of 14 years for a total of 28 years)
The history of copyright protection in the 20th century is one of increasing monopoly control by lengthening the term of copyright.
If statistics from the early twentieth century are any guide, few copyrighted works were renewed during the first century of U.S. copyright law. From 1910 until 1928, for works created between 1883 and 1900, no more than five percent of the copyrighted works expiring in any one year were renewed. Although the trend was toward gradually increasing numbers of renewals, even by 1959 fewer than fifteen percent of expiring copyrights were renewed. It seems likely, then, that between 1790 and 1831 most copyrights expired after fourteen years and between 1831 and 1909 most copyrights expired after twenty-eight years. [Innocent Infringement (pdf)]
More recently, these same players were unsuccessful at getting their way in international treaty negotiations, the Anti-Counterfeit Trade Agreement (ACTA):
Some of the worst aspects of the previous draft of the ACTA agreement, such as a provision requiring ISPs to adopt a Three Strikes Law, were removed from the U.S. Trade Representative’s final version of the instrument released in May 2011. ACTA suffocates collaborative creativity and innovation, and less explicitly, but just as gravely threatens free speech through provisions that may lead to Internet access restrictions for the “sake” of combating “imminent violation” of intellectual property laws. Worst of all, the secrecy of the negotiations sets a dangerous precedent for future international agreements, in creating powerful trade agreements that both skirt existing international discussions on intellectual property and allow it to go through with little or no input from civil society organizations or the public.
Sen. Wyden, who has been stalwart in his opposition to PIPA, has also questioned ACTA:
U.S. Senator Ron Wyden (D-Ore.) – chairman of the Senate Finance Committee’s Subcommittee on Trade – sent a letter to President Obama today asking why the administration believes the Anti-Counterfeit Trade Agreement (ACTA) does not require Congress’s formal approval. According to legal experts, cited by Wyden, if the USTR ratifies ACTA without Congress’ consent it may be circumventing Congress’s Constitutional authority to regulate international commerce and protect intellectual property and would therefore represent a significant expansion of the executive branch’s authority over international agreements.
SOPA and PIPA
What do SOPA and PIPA do? There is merit in the argument that the online protest Wednesday overstated the intent of the law. But as Computer World reported in October:
The proposed law would allow copyright and IP owners to issue requests [to ISPs and other service providers] for service termination if just one page on a site containing thousands of pages is deemed to violate the provisions of the law.
For instance, an auction website with a single listing for a counterfeit would theoretically be in violation of SOPA.
Ostensibly the law is designed to shut down foreign websites that harbor infringing content, ie, copyrighted work. But there are problems with how the foreign sites are defined: “any site not using a domestic domain name is a foreign site.” That would include sites like those used by most URL shortening services.
And the law requires that sites remove links from “infringing” domains — not links to infringed content but to the parent domain.
If the Attorney General served reddit with an order to remove links to a domain, we would be required to scrub every post and comment on the site containing the domain and censor the links out, even if the specific link contained no infringing content. We would also need to implement a system to automatically censor the domain from any future posts or comments. This places a measurable burden upon the site’s technical infrastructure. It also damages one of the most important tenets of reddit, and the internet as a whole – free and open discussion about whatever the fuck you want.
There are also serious problems with harm that is being claimed by the industry:
Intellectual property infringement was supposedly costing the U.S. economy $200–250 billion per year, and had killed 750,000 American jobs…. The $200–250 billion number had originated in a 1991 sidebar in Forbes, but it was not a measurement of the cost of “piracy” to the U.S. economy. It was an unsourced estimate of the total size of the global market in … counterfeiting of physical goods imported in bulk and sold by domestic retail distributors … a totally different phenomenon with different policy implications from the problem of illicit individual consumer downloads of movies, music, and software. The 750,000 jobs number had originated in a 1986 speech (yes, 1986) by the secretary of commerce estimating that counterfeiting could cost the United States “anywhere from 130,000 to 750,000? jobs. Nobody in the Commerce Department was able to identify where those figures had come from.
“When the opposition is based upon misinformation, I have confidence in the facts and confidence that the facts will ultimately prevail,” Mr. Smith said.
One one issue, the opponents didn’t go far enough with their protests. Per the CRS Summary we can see that SOPA does more than just provide a way to shut down websites where the rights holder claims infringement. In addition, the bill:
Expands the offense of criminal copyright infringement to include public performances of: (1) copyrighted work by digital transmission, and (2) work intended for commercial dissemination by making it available on a computer network. Expands the criminal offenses of trafficking in inherently dangerous goods or services to include: (1) counterfeit drugs; and (2) goods or services falsely identified as meeting military standards or intended for use in a national security, law enforcement, or critical infrastructure application.
Increases the penalties for: (1) specified trade secret offenses intended to benefit a foreign government, instrumentality, or agent; and (2) various other intellectual property offenses as amended by this Act.
PIPA, the Senate legislation,
… would allow the U.S. Department of Justice to seek court orders requiring search engines and ISPs to stop sending traffic to websites accused of infringing copyright. The Senate bill would also allow copyright holders to seek court orders requiring payment processors and online ad networks to stop doing business with allegedly infringing websites.
Both bills had provisions relating to DNS (domain naming service) which would require Internet search engines and providers to block foreign websites accused of piracy. This means that to reach such a blocked site, a person would need to know the IP address (a series of numbers) not the human-friendly URL. However, in an effort to be seen as open to reason or compromise, the DNS provisions have reportedly been pulled.
Wednesday’s day of protest did not come from out of the blue. In December, the Reddit led the movement that resulted in GoDaddy’s loss of customers and reversal on its stance on SOPA/PIPA. http://techcrunch.com/2011/12/21/scribd-protests-sopa/”>Scribd highlighted the bills in December by making documents disappear, word-by-word, when you visited the site. And Tumblr ran a campaign in November that led to almost 90,000 phone calls to U.S. Representatives.
One More Thing
Just a reminder about the revolving door: In December, two GOP aides who helped write SOPA left the confines of Congress for the greener pastures of K Street. They became lobbyists for National Music Publishers’ Association and the Motion Pictures Association of America (MPAA), two groups pushing for SOPA. And former Sen. Chris Dodd is now the Chairman and CEO of the MPAA.
The Oatmeal has an animation that spells out the issues (NSFW).
Watch Clay Shirky explain how copyright excess affects birthday cakes: