SOPA firefight comes to CES

At the Innovation Policy Summit at CES, Protect IP and SOPA take center stage, with supporters and opponents squaring off in an opening session.

Larry Downes
Larry Downes is an author and project director at the Georgetown Center for Business and Public Policy. His new book, with Paul Nunes, is “Big Bang Disruption: Strategy in the Age of Devastating Innovation.” Previous books include the best-selling “Unleashing the Killer App: Digital Strategies for Market Dominance.”
Larry Downes
6 min read

LAS VEGAS--The technology community has made substantial in-roads in efforts to stop SOPA and Protect IP, two bills pending in Congress that would expand the ability of federal law enforcement and rightsholders to police the Internet for violations of intellectual-property laws.

But the fight is far from won. That was the message yesterday at a contentious panel discussion at CES's Innovation Policy Summit, featuring Congressional staffers along with industry representatives from both Hollywood and the technology community.

Internet, SOPA

"Opponents have organized," said Ryan Clough, legislative counsel for Rep. Zoe Lofgren (D-Calif.). "But we haven't stopped SOPA dead in its tracks."

(See CNET's FAQ on the Stop Online Piracy Act.)

Clough pointed to a pledge Monday by influential Congressman Paul Ryan (R-Wis.) to vote against SOPA. Ryan's announcement followed an aggressive campaign on Reddit to force him to come out against the bill. Reddit and other social news Web sites have become increasingly militant in getting their members to act against the two bills.

As further evidence of momentum against the bill, Clough described a rancorous SOPA markup session in December that featured over 70 proposed amendments from Republicans and Democrats. The coordinated revolt led House Judiciary Committee Chairman Lamar Smith (R-Texas) to abandon plans for quick passage of the bill.

"It's now uncertain that SOPA will sail through quickly," Clough said.

Sandra Aistars, executive director of the Copyright Alliance, was the sole panelist who supported immediate passage of both bills. The Copyright Alliance is a pro-IP educational organization whose board members include the Motion Picture Association of America; the American Society of Composers, Authors and Publishers; BMI; and three of the largest content distributors--Viacom, Time Warner and NBC Universal.

Aistars said that the technology community had failed to propose concrete "tweaks" to make the proposed laws less dangerous. "A lot of the response has been amped up rhetoric that misstates the bills and the intentions of its proponents," Aistars said. "It is not directed to particular fixes."

Jayme White, staff director for Sen. Ron Wyden (D-Ore.), disagreed. "There's plenty of hyperbole on both sides," he shot back. (Wyden is a leading opponent of the Senate bill, the Protect IP Act.)

Other panelists took issue with the idea that "tweaking" bad legislation was the appropriate response. Some said they believe the bills are unfixable. They may also be unnecessary. Law enforcement agencies and private rightsholders already have extensive criminal and civil law remedies, and many notorious Web sites have been shuttered.

More to the point, the technology community has been largely shut out of the legislative process. In the Senate, Judiciary Committee Chairman Patrick Leahy (D-Vt.), forced through Protect IP without a single hearing. At the House hearing on SOPA, only one witness was allowed to testify against the bill. None of the proposed amendments to SOPA, including removal of provisions strongly criticized by Internet security experts, have been accepted.

Casey Rae-Hunter of the Future of Music Coalition applauded widespread protest against both the content and process of the proposed legislation. "The message is clear. Hit pause and bring in the stakeholders," he said. In the meantime, "we'll keep raising hell."

Jayme White also objected to the view that stopping rogue Web sites "at any cost" was an appropriate approach to legislation. "Even if you start breaking part of the Internet and making it less a platform for innovation," he said of media industry proponents, "it's OK if it combats piracy."

That attitude has raised concern in the Senate. "Protect IP would also capture legitimate Web sites, and could be used to target specific user-generated content." It also undermines U.S. efforts to keep the Internet free of local restrictions, White said, including content-based blocking by countries such as China.

Wyden, who chairs a Senate subcommittee on international trade and global competitiveness, has placed a hold on Protect IP. He has also introduced alternative legislation known as the OPEN Act that would enhance IP protection but in a far less intrusive manner. OPEN would not interfere with the domain name system or search results, for example, but would cut off the flow of money to sites proven to have "limited purpose or use" other than willful infringement.

(OPEN was jointly introduced by Wyden and Rep. Darrell Issa (R-Calif.). Issa is speaking on a panel of lawmakers at CES today.)

"Stopping the flow of money to rogue sites is a reasonable remedy," White said. "Altering the domain name system and censorship by the attorney general is not. If this is so urgent," he told Aistars, "let's agree to the less-controversial remedies for now."

The sense of urgency for supporters of the bills is palpable, especially as opposition has become more widespread among technology developers, investors, and users. Senate Majority leader Harry Reid (D-Nev.) has scheduled a January 24 vote to lift Wyden's hold and bring Protect IP to a full Senate vote.

But a bipartisan coalition of senators have pledged to fight Reid's efforts, and it's no longer clear if the majority leader can count on the 60 votes needed to move the legislation. "Protect IP is becoming politically toxic in the Senate," said White.

And if Protect IP stalls in the Senate, White said, "SOPA is dead in the House."

For its part, the Consumer Electronics Association, which hosts CES, urged the show's 150,000 attendees to call Reid from the Las Vegas Convention Center. "While supposedly aimed at online pirates," CEA wrote in a handout that was circulated throughout the day, "[Protect IP] will harm legitimate businesses like yours and promote litigation against innovators and entrepreneurs."

The handout provided Reid's office telephone number and a recommended script to "courteously" urge Reid not "to bring the Protect IP Act up for a vote" later this month as planned.

Earlier in the day, CEA President Gary Shapiro blasted "copyright extremists" and members of Congress who don't understand the Internet.

CEA has been an early and vocal opponent of Protect IP and SOPA. Leading Internet companies have since joined the fight, including Google, Facebook, Yahoo, and Twitter.

As the 2012 election draws closer, the likelihood of passage for any substantive copyright legislation is growing slimmer. For opponents of Protect IP and SOPA, delaying action on the bills may be the best hope for stopping them, at least for this year.

But Protect IP and SOPA aren't the only threats to innovation. On a later panel, Julie Samuels, an attorney with the Electronic Frontier Foundation, raised other dangers to the Internet ecosystem from overly aggressive rightsholders. Patent trolls have begun to sue individual app developers over technology provided to them by Apple and Google, for example. And copyright holders are making aggressive use of existing laws, including the Digital Millennium Copyright Act, to force content hosts to take down user postings.

In addition, the Department of Homeland Security's Immigration and Custom's Enforcement bureau (ICE) has been using the 2008 Pro-IP act to seize domain names using questionable legal theories now being challenged in court.

The agency has acknowledged accidentally seizing domain names of innocent sites. In a notorious incident involving music blog DaJaz1.com, ICE secretly seized the domain name and then stonewalled for over a year before abruptly abandoning the case.

ICE's efforts have hardly been "a smash success," said the Future of Music's Rae-Hunter, and call into question the wisdom of extending government authority further.

Attorney Andrew Bridges, who represented DaJaz1.com pro bono, was in the audience. "How many rogue Web sites are there that existing law isn't sufficient to stop?" he asked the Copyright Alliance's Sandra Aistars.

"I don't think it's productive to say how many," Aistars responded. "But it will be a hundred times more if we do nothing to stop them."

EFF's Samuels sighed. "I hate to be a Debbie Downer, but it's three steps forward, one step backward."

But so long as innovators and technology users keep up their momentum, that might just be good enough to save the Internet. At least for now.