A guest column in today’s New York Times may have set new records for overblown rhetoric about legislative efforts to curb offshore rogue websites profiting from illegal distribution of American intellectual property.
In it, Rebecca MacKinnon of the New America Foundation accuses the bipartisan legislation of establishing blacklists, firewalls and censorship. Scary indeed, and who wouldn’t be concerned about legislation that would do these things.
These claims are untrue, and we will explain that further momentarily.
But first, it is extremely disappointing that the New York Times would publish this column without acknowledging that the board of Ms. MacKinnon’s New America Foundation is chaired by Eric Schmidt, chairman of Google, whose business model relies on monetizing online searches and ad sales against popular content – whether legal or illegal. Google earlier this year paid one of the largest fines ever after settling a federal criminal investigation after it made hundreds of millions of dollars for knowingly placing ads for rogue online pharmacies.
Moreover, in a lawsuit against rogue website operators Luke Sample and Brandon Drury a few years ago, those individuals submitted an affidavit attesting to the fact that Google employees actually assisted them in crafting ad word buys that would drive more traffic to their sites. Among the suggestions were to use the terms “free” together with titles of movies still in theatrical release. Both these examples demonstrate Google’s known financial interests in profiting from infringing activities on rogue sites. Members of Congress alluded to these interests at a hearing today in the House Judiciary Committee, commenting that Google’s interest with respect to the legislation seems to be to “follow everyone’s money but theirs.”
Setting aside the obvious and unacknowledged conflict of interest of the author, let’s look at the claims related to free speech. Any rogue sites that could be implicated by the bills - PROTECT IP or the Stop Online Piracy Act (SOPA) - would be of necessity engaged in commercial activity. This means that the standard to apply is that applicable to commercial speech as established by the Supreme Court.
Actions affecting commercial speech do not violate the First Amendment if: 1. the regulated speech concerns an illegal activity; 2. the speech is misleading, or 3. the government's interest in restricting the speech is substantial, the action in question directly advances the government's interest, and 4. the regulation is narrowly tailored to serve the government's interest.
SOPA definitions are very narrow and rooted in existing Supreme Court precedent that domestic sites must already live up to. To be a site “dedicated to infringement” a site must:
- Be primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that violates US law; or
- Is taking or has taken deliberate actions to avoid confirming a high probability of the use of the U.S. directed site to carry out acts that constitute a violation of U.S. law; or
- Operates the site with the object of promoting or has promoted its use to carry out acts that violate U.S. law as shown by clear expression or other affirmative steps taken to foster infringement.
If there is any disagreement as to whether the site is dedicated to infringement, the issue would be settled in Federal Court by a Federal judge. Sites that are not trying to promote infringement and are not turning a deliberate blind eye to violations of U.S. law – as demonstrated by actions like offering payments or rewards to heavy uploaders who drive traffic to the site - would not meet the definition.
First Amendment scholar Floyd Abrams has written that First Amendment arguments raised by this legislation are “unfounded,” and has commented that the due process protections are so strong, uniform and constitutionally rooted that it is no exaggeration to observe that complaints in this area seem not to really be with the bill, but with the Federal Rules of Civil Procedure itself, which govern all litigants in U.S. federal courts.”
The Times guest columnist also makes an outlandish suggestion that U.S. policy in protecting IP rights would result in Chinese-style censorship. The author suggests this is so because PROTECT IP and SOPA would allow the same “process” for curtailing access to a site - DNS blocking – as the Chinese use to block numerous sites from their population.
It’s important to note the United States currently uses some of the same technical “processes” to track drug smugglers and terrorists that China and Iran use to monitor their entire populations. Legal wiretaps on drug lords are a good thing, wiretaps on millions of citizens to keep them repressed is a bad thing. Likewise DNS blocking that happens all the time today to accomplish very useful things – blocking phishing, malware, hacking, etc. is a good thing. DNS blocking to eliminate all references to Tiananmen Square is clearly a bad thing. We need to make that obvious distinction and move on.
Ms. MacKinnon also asserts that the bill would “empower the attorney general to create a blacklist of sites without a court hearing or trial.” There is no “blacklisting” implemented by SOPA. Instead, the bill requires case-by-case factual evaluations of sites alleged to be dedicated to theft of U.S. intellectual property, which would ultimately be conducted by the federal courts if a site or an intermediary contests the allegations. This will surely not result in a government policy to censor the freedom of the Internet in any way; SOPA and PROTECT IP make clear that their intentions are towards online infringement of U.S. intellectual property.
This is underscored by savings clauses in the very beginning of the bill that ensure that the bill not be applied to abridge free speech rights, and that it not be interpreted to expand doctrines of copyright liability.
The U.S. has been the creator and host to decades of freedom and innovation via the internet and there is no good reason to think that legislation giving our government direction and tools to go after foreign rogue sites will somehow be converted to stifle the freedoms of the Internet in the ways the Chinese do. Repressive regimes seek to control the Internet to stifle communication, creativity and expression. This legislation is designed to promote creativity and expression in the U.S., by stopping overseas criminal organizations from stealing American ideas and products.
This legislation isn’t going to hand the Chinese the moral high ground on Internet freedom. In fact, Secretary of State Hillary Clinton last week in a letter stated in no uncertain terms: “There is no contradiction between intellectual property rights protection and enforcement and ensuring freedom of expression on the Internet.”