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Sunday, February 20, 2011

Five Key Questions About America's Proposed Internet Piracy Laws

David Makarewicz

Despite America's "two-faced" calls for global internet freedom, this week, the Senate revived two controversial bills designed to give the U.S. government unprecedented powers to control internet property and activities.  First, the Senate rearranged and reintroduced the Internet Kill Switch bill, now called the Cybersecurity and Internet Freedom Act, which would empower the government to issue emergency orders to private companies if it declares a cyberemergency. 

While America's first declared cyberemergency may still be years away, the proposed Combating Online Infringement and Counterfeits Acts (COICA) threatens to have the most immediate impact on internet businesses.  This week, the Senate held a new round of hearings on COICA.  The bill, sponsored by Senator Patrick Leahy, would grant the Department of Justice broad new powers to control privately-owned websites, including the ability to order ad networks, payment transaction companies, and Internet service providers to cut financial ties with sites accused of infringement, or in the case of ISPs, block the sites from being accessed in the United States.

This proposal to empower the government with this an internet black list remains controversial.  However, most experts believe that Senate passage of the bill is a near certainty.  COICA is being pushed by major companies with major lobbying budgets, including the Ford Motor Co., the Motion Picture Association of America and the U.S. Chamber of Commerce.

As the debate about COICA's likelihood to decrease both copyright infringement and internet freedom rages on, here are five issues key to the conversation:

1. Does COICA ask Americans to trade freedom for limited, short-term benefits?  Even if COICA makes sense to combat today's technology, there is no reason to believe that it will it still make sense in five years.  If, instead, COICA is merely a mechanism to fight a war against technology that will evolve so quickly that the laws are rendered ineffective, the bill's infringements on civil liberties become even less tolerable.  Oregon Senator Ron Wyden, who derailed the previous incarnation of the bill, testified before the COICA Committee this week and reminded them that "the primary uses of the Internet are activities protected by the First Amendment, not civil or criminal violations."  Wyden also pointed out that not long ago, legislators were calling on the Senate to save the American music industry by banning digital audio tapes.

2. Would this law simply legalize actions the government is already taking?  In 2002,  George W. Bush asked Congress to create the Department of Homeland Security because "we must take action to protect America against the terrorists that seek to kill the innocent."  The American people, still reeling from 9/11, permitted the creation of the DHS.  However, the DHS was not exactly as advertised.  It turned out that the new agency would not limit its reach to the War on Terror.  Instead, in between protecting Americans from evil terrorists, the DHS spends its time and considerable resources protecting corporations from copyright infringement.  Recently, the DHS shut down websites that were even linking to sites accused of infringing.  Then, last weekend, DHS mistakenly seized the domain names of 84,000 websites mistakenly accused of child pornography.  If federal agencies can already simply shut down and take control of a domain and website without due process to the owner, how much more of a blacklist does the government need?

3.  Is the push for new laws based on flawed facts, figures and arguments?  Senator Leahy's primary justification for COICA has been his claims during testimony that copyright piracy costs "the American economy billions of dollars annually and hundreds of thousands of lost jobs."  Critics call his numbers "bogus."  These critics claim that such quantification of the effects of piracy is impossible and that Leahy ignores GAO findings about the way that lost profits and tax revenues are offset by consumer benefits.  Others object to Leahy's unsubstantiated numbers because they were provided by the very industries whose profits COICA is poised to protect.

Another set of critics took issue with arguments made by COICA advocate, author Scott Turow, who testified in favor of the legislation on behalf of the Authors Guild.  Turow's New York Times Op-Ed entitled "Would the Bard Have Survived the Web?" weakly attempted to invoke Shakespeare to argue that money, which copyright theft drains from modern artists, has historically been the only effective fuel for the world's great creative works.  Turow's gross misapplication of 17th century playwriting concepts to the modern publishing industry and internet landscape was appropriately criticised with words like "stupid" and "balderdash."

4.  How has COICA generated both bipartisan support and bipartisan opposition?  Maybe this is the bipartisanship America has been promised.  You have to love an issue that brings the Tea Party and ACLU to the same side of the table--in this case, opposing COICA.  On the other side of the table, lawmakers from both parties, pushed by their allies in the content industry, appear poised to join together to  pass this legislation.

Opposing the legislation rom the right, Tea Party members are arguing that this legislation is nothing more than another power grab for Barack Obama and Eric Holder.  This was evidenced at last week's Conservative Political Action Conference, which was littered with flyers warning that COICA is just a way for big government to take your website. 

Opposing the legislation from the left, civil liberties organizations like the ACLU are renewing their stern warnings about the way this legislation, even as revised, allows the government to trample civil liberties by shutting down a website without even obtaining a court order.  If the far-left and far-right agree that COICA gives the government dangerous powers, it will be fascinating to see if the bipartisan group of unconcerned moderates in the House and Senate is large enough to push the leglislation through.

5.  Why has Google stood up the Committee?  Although the COICA Committee has now heard from representatives from Rosetta Stone Inc., Authors Guild, The Go Daddy Group, Inc., Verizon Communications, and Visa, Inc., search engine giants, Google and Yahoo have both declined Senator Leahy's invitations to testify.  Leahy defiantly responded to the snub by saying "It would have been helpful to have their testimony here to prepare for it, but we will have the legislation one way or another."  Despite these dismissive comments, Leahy continues to lobby for Google's support. 

Google's position on COICA remains undefined.  Recently, it has unleashed its own series of anti-piracy measures, including punishing the search engine rank of infringing websites and outright blocking some file-sharing sites.  Some of Google's measures are probably in response to threats, such as the MPAA's recent warning that it will attempt to disconnect Google from the internet if the search engine does not take protective action.  However, whether or not you agree with Google's approach, the steps it has taken demonstrate that private industry, which does not have to concern itself with the Bill of Rights, is capable of a level of self-policing that should decrease the need for a new government blacklist.

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