Firstly, how does a federal law that creates an internet security exemption to every other existing law represent keeping the "federal govt’s hands off the Internet"? The entire point of CISPA is to give every federal agency that already has its hands on the internet more information and power. Similarly, while the bill itself does not have any provisions relating to blocking website access, it creates clear provisions for companies to give data to Homeland Security—the people who already seize websites.

Strong privacy protections? CISPA includes virtually no privacy protections, beyond a call for annual recommendations from the Privacy and Civil Liberties Oversight Board. Meanwhile, it eliminates existing privacy protections, because as soon as a company deems its data "cyber threat information", it can turn it over to the government without worrying about any other laws. As for how CISPA "strictly limits" what the government can do with the data, that depends on your definition of "strictly"—and, of course, whether you're honest about what the bill says, which the House Intelligence Committee is not:

Maybe they'll blame Twitter's character limit, but they left out a very important part there. Information can only be shared with the government if it is related to cybersecurity, but it can be used by the government for the purposes of cybersecurity or national security. That's a much, much broader field, and the cybersecurity heading is already pretty wide open, when you remember how it's defined in CISPA—as anything relating to protecting a network from:

‘(A) efforts to degrade, disrupt, or destroy such system or network; or

‘(B) theft or misappropriation of private or government information, intellectual property, or personally identifiable information.

Moreover, there are no limitations on how long the government can keep the data, or on how often they can come back and search it for whatever they want—as long as they can justify the search as either cybersecurity or national security. That's not what most people call "strict".

Resistance to CISPA is growing, and more flimsy misinformation isn't going to change anything just because the committee puts it on Twitter. We already wrote about how astonishing it is that Congress expected no resistance to the bill, and now it seems like they're finally waking up to the fact that they were wrong—but, as usual, they have no idea how to respond.

The first question directly challenges Sherman over his NYTimes op-ed in which he claimed the massive opposition to SOPA/PIPA was somehow undemocratic, asking him if he really thinks an informed populace is a bad thing. But Sherman is still convinced that it was all a misinformation campaign by Google (though he avoids using the name):

I obviously think that an informed electorate is a great thing. The question is whether they were really informed or whether they were being misinformed. That was the point of the op-ed: that there was a lot of misinformation about the bill that was being circulated, and that was accepted by readers online in terms of "if it comes from these sources it must be true." I know that a lot of members of Congress who had worked very hard on the legislation were very frustrated that they couldn't get out their side of the story, that this legislation was not what it was represented to be. So my op-ed was not intended to really raise questions about whether the legislation was good or bad, but that everybody has a responsibility to be accurate and really factual about what the legislation provides. Otherwise those platforms can be used in ways that aren't engaging the electorate in a good way, but rather in an anti-democratic way.

Hopefully that was a one time experience that came from a lot of different things coming together, where a lot of different people came to the conclusion that this was a terrible piece of legislation. I think Congress got that message loud and clear. But in the future, think of how that could be abused for bad purposes. I think all of us have an interest in making sure that we hold ourselves on the internet to the same high standards that we've tried to hold ourselves in the offline world, whether it's newspapers or broadcast journalism or whatever. There ought to be clarity and integrity with respect to the facts.

That's right: he hopes millions of people actively participating in the democratic process with the help of online tools was a one-time experience. Putting aside the fact that it makes you question his values, this statement demonstrates that he's a fool. His industry has pushed and pushed for decades, eroding freedoms and locking up culture through deals negotiated in back rooms, and they finally reached the breaking point. The world woke up, and Sherman thinks he can just wait for them to fall asleep again.

He also still can't get it through his head that the internet is not separate, and that media is just people communicating. Newspapers and broadcast news are no more or less perfect than online news, and only the most oblivious commentators truly believe they are paragons of journalistic ideals that can serve as an example to newcomers. Besides, plenty of traditional sources were opposed to SOPA/PIPA as well.

On the topic of newspapers, the next question asks Sherman for his thoughts on their approach online. He notes that many have yet to find the advertising dollars they hoped for, and says it's "interesting" (wink wink) that so many are moving towards paywalls. I won't respond to that, because Mike said it all last week: let 'em.

Another reader asks what he thinks of online services that let artists go directly to fans:

You know, I have nothing with cutting out the middleman. I think that if an artist wants to go it alone, go it without a middleman, that is the artist's choice. And for some artists it can work very well. It hasn't happened that way: most artists who have been more majorly successful have had the help of a label, it could be an indie label or a major label. What they provide is the marketing and promotion that is so clearly necessary to distinguish yourself in this day and age. In 2010 you had 75,000 new albums released. 70,000 of them, that's 94%, sold less than 1000 copies. That isn't much to make a commercial career out of. It's hard to see how you could make a career as a musician when you're selling less than 1000 copies of your recording, unless all you're really doing is live gigs and you're making a few extra bucks by selling some recordings.

It's a muddled response, because the numbers he presents are from SoundScan and do not include the very direct-to-fan services he's supposed to be talking about. More importantly, it shows how limited his thinking is: other than live shows, he ignores every single artist revenue stream, even the traditional ones like licensing. Mere number of albums sold is not enough information to decide if an artist can build a career, and it never has been. Sherman continues, rightly recognizing that there are still very important roles for middlemen services today, but failing to realize that his industry is not the only player:

The point is that for some artists who want to go it alone, that's great, many of the artists that we see are great at making music, they're great at performing, but business is not what they want to do, promotion is not what they want to do. There are some obvious exceptions to that, but that's what record companies do, that's what managers do. They're all intermediaries in a way, but they are intermediaries that grow the audience, that improve the demand for that artist's creative work.

What he ignores is that the traditional record label model is not the only way to offer these services. Increasingly, it's the worst way: even in the first part of the interview he admitted that labels are no longer benefiting artists the way they used to. Artists who eschew labels may have to do some of the legwork of promotions and business, but the tools are all there for them. They can use Bandcamp. They can use TuneCore. They can use Topspin. They can use Bandzoogle. They don't need label help to find a distributor and build a website and launch a merch store—they can do it all in a few clicks. Good middlemen are enablers, while record labels still want to be all-powerful gatekeepers, as Sherman makes disgustingly clear:

There's no doubt that there's going to be a continuing role for record companies. That role may change over time, but the more you've got online capability for anyone with a guitar and a little bit of recording equipment to get online and try to become a musician, the more you need specialists to designate and separate the wheat from the chaff, who is worth listening to, who is worth promoting and marketing. That's what record companies have traditionally done. They have been the talent scouts and then they have put their financial and human resources into actually marketing and promoting that talent and helping to shape it. How many artist pages are there on MySpace right now? Who can figure out who to listen to? So having a curation function that record companies perform is becoming more important, not less.

I hope Sherman has fun separating the wheat from the chaff on MySpace (sigh) while the rest of the world leaves him in its dust. The astonishing arrogance of his statements just underline the problem: the recording industry sees itself as the arbiter of culture, and isn't willing to give up even a shred of control. The internet has enabled countless new curation models, from the ease of setting up a music blog to the algorithmic possibilities of recommendation engines to the ongoing social curation of Facebook and Twitter—we don't need executives to "designate" who is worth listening to based on ROI projections. Promotion takes only a fraction of the "financial and human resources" that it once did, and artists are increasingly unwilling to sign over their entire careers for something they can do themselves.

The next question is about ways to enforce intellectual property rights without damaging innovation and creativity, and Sherman calls for balance (as long as that balance is completely in his favor):

It's finding that sweet spot between protecting content and creators and creativity, and ensuring that you're not losing the benefits of innovation in technology, that is a difficult thing to do. There are ways that it can be done that aren't now being taken advantage of. YouTube for example, anything goes up there, but once it's taken down they have a mechanism, a filter to make sure that it doesn't go back up. Why aren't other websites doing that? Why, when other websites are being told that particular content is illegally being posted, don't they take more aggressive measures to prevent it from being put up there, or being put back up there? There are now technologies available that make it really easy to identify copyrighted content in a way where it can be protected but all the other benefits of the technology would be available. So there are ways for the technology to be used to actually improve the situation for creators and maintain technological innovation, we just need more of a will to see it done.

If it's "really easy" to identify infringing material, why did Viacom sue YouTube over 100 videos they themselves uploaded? How did Rumblefish accidentally claim ownership of birdsong? Why have the feds been seizing domains over label-authorized material? Why did Universal Music declare 50 Cent's own website to be a rogue site? It's only "easy" if you don't care about legitimate material getting caught in the crossfire—and indeed, even Sherman's own wording notes that it's only easy to identify "copyrighted" content, not infringing content.

There is some more discussion, covering Sherman's shock that the streaming services his industry has fought at every turn are not suddenly making him rich—but it's all pretty routine. Sherman closes out the interview with a statement that would have sounded optimistic and forward-thinking ten years ago, but today sounds like an obsolete industry playing catch-up, pretending to embrace something they have fought for years, and fantasizing that they can exert control over something that is happening without and despite them:

I think that one of the things we've learned is that it's not likely to be one big thing, it's likely to be a lot of little things, it could be thousands of little things. There are so many niches in the music market in the way that people want music and the way that people use music and in the type of people who use it, that we think that there are going to have to be a lot of different models to try and monetize many different ways in which content is delivered to consumers. And we're actually optimistic that over time we're going to be finding a lot of those models and they're going to add up to a viable revenue stream for the industry.

"Over time"? Sorry, guy-who-just-noticed-MySpace: time's up.

Misinformation may be a dirty trick, but it works.

During the legislative hearing on SOPA, House Homeland Security Subcommittee Chairman on Cybersecurity Rep. Dan Lungren (R-CA) questioned MPAA Exec. Vice President Michael O’Leary about the cybersecurity problem.  In response he received the standard misinformation campaign line of there was no cybersecurity problem and that this type of activity “occurred all the time.”  To bolster their misinformation campaign, the content lobby worked hard to manufacture the “truth” by highlighting the work of the very small number of individuals (a grand total of three) who wrote “technical rebuttals.”  These were not so much rebuttals as they were well orchestrated advocacy pieces that ignored the engineering and distorted the studies they utilized in order to dupe Members of Congress to believe the legitimate concerns were in fact unsupported.

Part of the RIAA and MPAA misinformation campaign centered on the argument that DNS filtering and secure networks (DNSSEC) could both exist in the same network.  This was despite the fact that top experts in the field provided an extensive explanation why that would not be technologically possible (a couple of these individuals actually saved the Internet in the past).  In the end, when Comcast (a SOPA supporter) announced they had to shut down anything that filters DNS traffic when they activated DNSSEC and the White House Cybersecurity Coordinator stated that the bills “pose a real risk to cybersecurity,” the jig was up.

Lastly, claiming that censorship concerns in regards to DNS filtering were misplaced completely ignores the fact that SOPA and PIPA moved America closer to censorship oriented regimes.  If these bills were enacted into law, American broadband providers would have been required to install the same filtering technology used in China, Iran, United Arab Emirates, Armenia, Ethiopia, Saudi Arabia, Yemen, Bahrain, Burma (Myanmar), Syria, Turkmenistan, Uzbekistan, and Vietnam.  This reality triggered the outpouring of opposition from the international human rights community who fight censorship overseas every day and point to the United States as the model.  Summing up the well informed reasoning behind their opposition, Julian Sanchez with the Cato Institute points out that enacting SOPA and PIPA would mean the “only difference between the Unites States and China is what's on the blacklist.” 

THE digital tsunami that swept over the Capitol last month, forcing Congress to set aside legislation to combat the online piracy of American music, movies, books and other creative works, raised questions about how the democratic process functions in the digital age.

Policy makers had recognized a constitutional (and economic) imperative to protect American property from theft, to shield consumers from counterfeit products and fraud, and to combat foreign criminals who exploit technology to steal American ingenuity and jobs.

They knew that music sales in the United States are less than half of what they were in 1999, when the file-sharing site Napster emerged, and that direct employment in the industry had fallen by more than half since then, to less than 10,000.

They studied the problem in all its dimensions, through multiple hearings.

While no legislation is perfect, the Protect Intellectual Property Act (or PIPA) was carefully devised, with nearly unanimous bipartisan support in the Senate, and its House counterpart, the Stop Online Piracy Act (or SOPA), was based on existing statutes and Supreme Court precedents. But at the 11th hour, a flood of e-mails and phone calls to Congress stopped the legislation in its tracks. Was this the result of democracy, or demagoguery?

Misinformation may be a dirty trick, but it works.

Consider, for example, the claim that SOPA and PIPA were “censorship,” a loaded and inflammatory term designed to evoke images of crackdowns on pro-democracy Web sites by China or Iran.

Since when is it censorship to shut down an operation that an American court, upon a thorough review of evidence, has determined to be illegal? When the police close down a store fencing stolen goods, it isn’t censorship, but when those stolen goods are fenced online, it is?

Wikipedia, Google and others manufactured controversy by unfairly equating SOPA with censorship. They also argued misleadingly that the bills would have required Web sites to “monitor” what their users upload, conveniently ignoring provisions like the “No Duty to Monitor” section.

The hyperbolic mistruths, presented on the home pages of some of the world’s most popular Web sites, amounted to an abuse of trust and a misuse of power.

When Wikipedia and Google purport to be neutral sources of information, but then exploit their stature to present information that is not only not neutral but affirmatively incomplete and misleading, they are duping their users into accepting as truth what are merely self-serving political declarations.

As it happens, the television networks that actively supported SOPA and PIPA didn’t take advantage of their broadcast credibility to press their case. That’s partly because “old media” draws a line between “news” and “editorial.” Apparently, Wikipedia and Google don’t recognize the ethical boundary between the neutral reporting of information and the presentation of editorial opinion as fact.

The violation of neutrality is a patent hypocrisy: these companies have long argued that Internet service providers (telecommunications and cable companies) had to be regulated under the doctrine of “net neutrality” because of their power as owners of the Internet pipes. But what the Google and Wikipedia blackout showed is that it’s the platforms that exercise the real power. Get enough of them to espouse Silicon Valley’s perspective, and tens of millions of Americans will get a one-sided view of whatever the issue may be, drowning out the other side.

The conventional wisdom is that the defeat of these bills shows the power of the digital commons. Sure, anybody could click on a link or tweet in outrage — but how many knew what they were supporting or opposing? Would they have cast their clicks if they knew they were supporting foreign criminals selling counterfeit pharmaceuticals to Americans? Was it SOPA they were opposed to, or censorship?

No doubt, some genuinely wanted to protect Americans against theft but were sincerely concerned about how the language in the bill might be interpreted. But others may simply believe that online music, books and movies should be free. And how many of those e-mails were from the same people who attacked the Web sites of the Department of Justice, the Motion Picture Association of America, my organization and others as retribution for the seizure of Megaupload, an international digital piracy operation? Indeed, it’s hackers like the group Anonymous that engage in real censorship when they stifle the speech of those with whom they disagree.

Perhaps this is naive, but I’d like to believe that the companies that opposed SOPA and PIPA will now feel some responsibility to help come up with constructive alternatives.

The diversionary bill that they drafted, the OPEN Act, would do little to stop the illegal behavior and would not establish a workable framework, standards or remedies.

It has become clear that, at this point, neither SOPA, PIPA nor OPEN is a viable answer. We need to take a step back to seek fresh ideas and new approaches.

We all share the goal of a safe and legal Internet. We need reason, not rhetoric, in discussing how to achieve it.