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The massive public outcry against the Stop Online Piracy Act and the Protect IP Act “was orchestrated by misinformation by a few actors,” an aide to the House Judiciary Committee said June 15.
Stephanie Moore, the Democrats' chief counsel for the House Subcommittee on Intellectual Property, Competition and the Internet, said that the it was hard to know if the deluge of phone calls that Congress received was actually from concerned citizens who both understood and opposed the bill, or if it was instead prompted by misinformation.
“Netizens poisoned the well, and as a result the reliability of the internet is at risk,” Moore said at a panel focusing on both SOPA and the Protect IP Act at the American Constitution Society's 2012 National Convention in Washington, D.C., said.
Indeed, Moore suggested that a vast majority of the those who voiced their opposition to the bills had never read, and did not understand, the proposed legislation.
“Congress was criticized for not being tech savvy, but from a lot of the comments we got it became clear that the people who were calling us did not understand the bill any better than we did,” Moore said. She also raised questions about whether the opposition was truly a grass roots development, or instead was driven by self-interested companies using their power and influence to achieve their own ends.
“We don't know what the numbers mean,” she added, referring to claims by the internet community that over 800,000 citizens called their representatives to voice their opposition to the bill.
Moore's dismissal of the netizen response--a term referencing citizens that are concerned about the future of the internet--was criticized by co-panelist Katherine Oyama, Google's copyright counsel.
“I can understand why in D.C. people think there must have been a company behind the opposition because here people are so used to deals being done behind closed doors,” Oyama said. “But for folks that have grown up with and rely on the internet, [the opposition] was a visceral response to a bill that was much broader than was originally advertised.”
Oyama noted that in addition to the more than 115,000 websites that went dark Jan. 18 pursuant to “internet blackout day,” there were also 3.9 million tweets about SOPA that day.
After Google launched a website to inform citizens about the legislation, more than 7,000,000 people petitioned Congress to vote no on SOPA and the Protect IP Act, Oyama said. “The mass constituent outcry has kind of fundamentally taken shape here in D.C.,” she said.
The internet blackout and the public outcry on Jan. 18 seemed to signal a turning point in the debate, as a numerous lawmakers pulled their support for the legislation, resulting in both bills being shelved just two days later (13 PTD, 1/23/12).
Moore later walked back her wholesale criticism of the netizen response to SOPA. “Activism is welcome on the Hill, but the volume of the noise cannot always dictate what policies we enact,” she said. “There's this thing called 'mob rule', and its not always right.”
SOPA (H.R. 3261) was introduced Oct. 26 by Rep. Lamar S. Smith (R-Texas), chairman of the House Judiciary Committee (209 PTD, 10/28/11). It is a counterpart to the Senate's Protect IP Act, S. 968, which was approved by the Senate Judiciary Committee in May 2011 (103 PTD, 5/27/11). Both bills seek to give the government tools to combat websites that give access to infringing material and counterfeit goods and to act against unauthorized streaming of content.
Under the original language of Section 102 of the House bill, an internet service provider may have been required, in actions brought by the U.S. Attorney General's Office, to “take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site.”
A manager's amendment introduced by Smith in December tweaked the language concerning an internet service provider's duty to block infringing websites at the DNS level (240 PTD, 12/14/11). However, the DNS blocking remedy is still technically available in SOPA--though it was not a requirement--and a similar provision remains in the Protect IP Act, prompting the White House, just prior to the bills being set aside, to issue a statement in which the administration said it would not support any bill containing DNS interdiction language (11 PTD, 1/19/12).
But Steven J. Metalitz, of Mitchell, Silberberg & Knupp, Washington, D.C., said the concerns over DNS blocking were overblown.
“Most countries in the world already have this option at their disposal to deal with this problem,” Metalitz said during the ACS discussion. “If site blocking broke the internet, then the internet would already be broken.”
Similarly, Metalitz said that the opposition's argument that “copyright means censorship is simply untrue.” He added, “I understand that in debates like this there is going to be over simplification, but this is a dangerous one for those that care about free expression.”
Moore agreed that the free speech concerns were misplaced. “The First Amendment argument is not appropriate in this context,” Moore said. “The First Amendment is part of copyright. They are not in tension.”
Lateef Mtima, a law professor at Howard University, said during the question-and-answer session that Metalitz was mischaracterizing the First Amendment concerns. “Nobody that I am aware of said that copyright means censorship,” Mtima said. Rather, he said the free speech concerns were based on the vagueness of the text, and the fact that the legislation seemed to make no accommodations for fair use.
Panelist Gregory Alan Barnes, director of government affairs for the Digital Media Association in Washington, D.C., also took issue with the way that the SOPA proponents were framing the First Amendment issue.
The debate is not over whether people who engage in infringement should be afforded First Amendment protection, Barnes said. “This is about how overaggressive enforcement can lead to a chilling of legitimate expression.”
Mtima said that the mischaracterization of the First Amendment was emblematic of the failure of both sides to listen to one another. Thus, he challenged the panelists who supported SOPA to identify one thing that they had learned from the opposition that could be beneficial in reaching a compromise going forward.
Metalitz identified two takeaways.
First, he acknowledged that some of the definitions in the legislation could have been improved. “We need to get focused and practical definitions,” Metalitz said.
Oyama agreed. “Implementation and words for legislation really matter,” she said.
The second thing that Metalitz said he learned from the opposition was that internet companies seemed to be in favor of a follow-the-money approach.
Indeed, in her Nov. 17 testimony during the lone House hearing on SOPA, Oyama repeatedly stressed the fact that a follow-the-money approach focusing on payment processors was ultimately successful in bringing WikiLeaks down (221 PTD, 11/16/11).
Metalitz said that such a remedy should be a part of any final agreement, but that alone was not enough. “Our efforts must go beyond that,” Metalitz said.
Opponents of the bill weren't challenged to identify anything that they had learned from SOPA supporters. Oyama, however, did say that the disconnect between what SOPA and the Protect IP Act would actually accomplish, and their stated purpose of going after foreign rogue websites, was a reason for the staunch opposition from the tech community.
“If you want to get consensus on passing legislation then you need to have what it says match what you say it does,” Oyama said.
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