We were disappointed this week by an effort, apparently organized by Techdirt founder Mike Masnick, to stir the pot by once again setting up a false choice between protecting the tech versus the creative sector when considering the PROTECT IP Act.
While it is true that the entertainment industry and the tech community don’t always see eye to eye on how best to ensure vibrant digital commerce thrives on the internet, we would have expected that someone so in tune with the tech community would add something new to the discussion, instead of merely rehashing myths about the bill. The letter can be read here in its entirety, and we have rebutted these sorts of assertions many times before (see here and here) but a couple of points are worth making in response.
The letter starts by noting that “it is a truism that small businesses create significant economic growth and jobs, but it is more accurate to say that new businesses, including tech start ups, are most important”. Leaving aside the authors’ evaluation of the relative merits of tech start ups versus other businesses, we agree with this statement as far as it goes – though the implications to be drawn from this point are different than what the authors might suggest.
The majority of the creative community is composed of individual creators, entrepreneurs and small businesses – songwriters, authors, photographers, journalists, graphic artists, performers, visual artists, developers of apps and other software. These individuals work in every community across the country. They typically employ a handful of workers, contract with dozens more, and rely on the services of vendors not typically thought of as part of the creative community. They pay their taxes, contribute to the welfare of their communities. These are the businesses that are threatened, the jobs that are lost, and the new businesses that are stillborn, when creators cannot invest resources in creating new work, but rather must spend their time endlessly battling rogue sites that illegally disseminate their work, funding it through subscriptions or membership fees, advertising and other profit making schemes, without a return to the creators.
The letter merely repeat a litany of misstatements about the bill, including that the bill applies a “vague standard”, “combined with a private right of action” for ”overzealous rightsholders” that will disrupt legitimate sites because they “can also be used for piracy” or might “facilitate some unauthorized activity.” Significantly, the authors couch their argument in historic terms citing technologies as old as the gramophone and player piano, rather than addressing the real world issues and illegitimate websites creators are battling daily.
For the record, the bill addresses only sites that are dedicated to infringement. This is defined narrowly as sites that “have no significant use” other than infringement – a test derivative of the standard announced by the Supreme Court in the Sony Betamax case, which has long been recognized by consumer electronics and information technology companies as the appropriate standard for distinguishing infringing products from staple articles of commerce.
Finally the letter bemoans the burdens placed on third parties required to comply with the legislation, and notes that legitimate services already “do their part by following the notice and takedown provisions of the DMCA”. But neither issue is on point with respect to this legislation. Rather than placing ill-defined burdens on third parties, the bill clearly limits third party responsibility to complying with Federal court orders identifying sites as “dedicated to infringement”, and specifically ensures that the obligations imposed on third parties are commercially and technologically reasonable. Similarly, whether or not legitimate sites comply with DMCA notices is irrelevant. One of the main motivations for the legislation is to address the problem of rogue sites located off shore, beyond the reach of DMCA provisions.
By rehashing generations old history and repeating myths and misstatements about the bill, the main thing the signatories have shown is that there is nothing new they can bring to the debate, and that it is time for Congress to act on the legislation.