Ron Wyden Speaks Out Against COICA: We Shouldn't Toss Out The First Amendment Just To Go After A Few Bad Actors

from the say-it-again dept

Senator Ron Wyden (who just joined Twitter) was kind enough to send over the remarks he made to the Senate Judiciary Committee concerning COICA. It’s an excellent read that highlights many of the points we’ve been making. Basically, he says that we need to be careful not to decimate basic principles of free speech and create all sorts of collateral damage in an effort to go after a few bad actors who can be targeted via other laws:

Make no mistake, I share the committee’s goal of fighting counterfeiting and protecting our creative industries and the good paying jobs they support. The Internet has unquestionably created new opportunities to traffic in counterfeit and illegal goods. The fact that the law has not always kept pace with technology may make it easier for bad actors to exploit new opportunities. Congress is right to want to go after those who are “stealing American intellectual property.” However, in writing laws to target the bad actors, Congress cannot afford to forget that the primary uses of the Internet are activities protected by the First Amendment, not civil or criminal violations.

[…] Yes, the Internet needs reasonable laws and bad actors need to be pursued, but the freedoms of billions of individual Internet users cannot be sacrificed in the interest of easing that pursuit. The decisions we make to police the Internet today will also govern how this relatively new medium will continue to develop and shape our world. I objected to last year’s Combating Online Infringement of Copyrights Act not because it might reduce the Internet’s ability to facilitate infringement, but because I believe it went about it in a way that would also reduce the Internet’s ability to promote democracy, commerce and free speech.

He also laid out six specific points to consider in dealing with these issues. I agree with all six, and am particularly happy to see him mention the importance of separating counterfeiting from copyright protection, a key point that we’ve discussed here, but I had not seen anyone in politics pick up on until now.

  1. Don’t be hasty. Good public policy is not made on the back of a galloping horse. While both Congress and law enforcement are understandably eager to go after bad actors, both must be mindful of the precedents that they are setting in the U.S. and around the world. The law is best applied when the government’s assertions can be challenged before its actions are approved.
  2. Avoid collateral damage. Granting law enforcement broad authority to censor online content has a chilling effect on free speech. Narrowly focus law enforcement?s authority on those who are deliberately breaking the law or infringing on others? property rights for commercial gain.
  3. Preserve Fair Use and secondary liability protections. These safeguards are fundamental to Internet commerce and explain why American companies have been so successful in the global marketplace. The network effect is such a powerful driver of commerce on the Internet that any restriction on links and referrals is a serious barrier to economic activity.
  4. Be mindful of how remedies can threaten and shape the integrity or architecture of the Internet. Decisions made today can have lasting results.
  5. Avoid taking actions that will empower foreign regimes to censor the Internet. The United States has led the world in promoting free speech; our example cannot be allowed to give authoritarian regimes any excuse to go backwards.
  6. Recognize the difference between copyright infringement and counterfeits. A one-size-fits-all approach towards trademarks and copyright may not be appropriate.

Once again, it’s great to see Senator Wyden speaking out on these issues, but it’s shame that he remains one of our only elected officials willing to pay attention to the problems with COICA and domain seizures.

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Comments on “Ron Wyden Speaks Out Against COICA: We Shouldn't Toss Out The First Amendment Just To Go After A Few Bad Actors”

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average_joe says:

Basically, he says that we need to be careful not to decimate basic principles of free speech and create all sorts of collateral damage in an effort to go after a few bad actors who can be targeted via other laws

What “other laws” do we have now that allow us to target foreign web-based operations that infringe U.S. IP?

duffmeister (profile) says:

Re: Re:

We actually have a number of ways to do this: Berne Convention, WIPO, International Trade Agreements, and the like. A good list as a starting point is found here:

I think we should use what is already there and not enforce our laws on the sovereignty of other nations. It sets a bad precedent,makes us look like bullies on the international scene and also provides a way for other countries to begin to censor our peoples and freedoms.

I am all for sensible reforms and agreements. I am against the US declaring itself the IP cops of the world as it tends to ignore the harms in favor of greater oppression by means of economic warfare.

We really need to evaluate what the goals are and work towards them more holistically rather than in knee jerk reactions to questionable laws in the first place.

If in the world of the 1800’s where technology let distribution be difficult, 14 years was considered enough protection, why are we talking protections lasting over a century now? Why are they not accepting the very distribution methods that pirates and others are using to distribute their goods? Why can’t this be a real dialog that discusses at face value the issues rather than always clothing it in disingenuous characterizations?

Reforms are definitely needed. IP is not a tangible good and should not be treated like one. Should it be a protected item, yes. The problem is that fair usage and freedoms need to be considered as more and more ideas are locked up as if they were a physical object.

I have never seen how an idea was lessened by it being in more than one mind. Isn’t this how freedoms and ideas are supposed to grow? They spread and become stronger in the sharing not weaker.

It is sad that the only way to legally send something to the public domain at creation is to intentionally put an “unclear copyright notice” on it so that there is never a clear copyright to assign to anyone.

Anonymous Coward says:

Re: Re: Re:

None of those “methods” you suggest are powerful enough or timely enough. Most actions that end up in the “world court” are moot, because the people reponsible tend to die of old age before a judgement is reached.

The speed of the internet means that harm is done rapidly, widely, and without borders. if you follow the discussions here you know that information travels far and wide and very quickly, often with millions of visitors and thousands of seeded copies of a nasty torrent spreading all over the world in a matter of days. The harm that is done by not taking direct action is immense, the recovery possible on the other side minimal.

Failure to respect the rights of others (authors, musicians, artists, researchers, inventors, and so on) is a significant issue.

Total freedom is not possible, for it only exists as anarchy. We trade some of our freedoms for security and peace, for a safer life and common understanding of basic laws that allow us to travel, to work, and to prosper. Without those sorts of rules, we quickly sink to the lowest common denominator, to the level of the lowest. We don’t raise people up, we push the best down. Is that what you want?

:Lobo Santo (profile) says:

Re: Re: Re: Re:

I refuse to give up any of my freedoms in exchange for security. If I have a need for security, I’ll handle it myself or contract with other.

So far as the need to give up freedom for security, I only have this to say:
……..(‘(…?…?…. ?~/’…’)
……….”…………. _.??

Benjamin Franklin was absolutely accurate on that score. And if you don’t know the quote, you really should look it up.

Anonymous Coward says:

Re: Re: Re:3 Re:

Did you hear the Tom Cruise is dead?

He’s been made dead on the internet any number of time. The speed of communications means that the rumor travels farther and faster than ever before, and the truth is hard pressed to chase it down. That is one something that is a simple provably fact.

Now, let’s consider the less obvious “Mike Masnick is a weenie who uses ghost writers”. That is one of those things that could get spread all over the place, true or not. It is incredibly difficult to prove to be completely false, and no matter what attempts are made, the rumor is out there, circulating at high speed. Every visitor to this page (or the site that original mentioned it, you can find it if you look on Google), will come away thinking that. Maybe they tell their friends, or like the post. Without hours, that rumor could be everywhere.

Now, if that website every day adds more and more like this to it’s site, and more people like it, and that information become common knowledges, right or wrong, it is out there.

Now, Mike could try to get an injunction against the site, sue them for their comments, etc. But because of his beloved Streisand Effect, the information is out there no matter what, and pointing at it would only make it spread faster.

So if you buy the “effect”, the rest follows.

teka (profile) says:

Re: Re: Re:4 Re:

And where is the harm? you have still failed to come through with that.

Ok, some people may believe a rumor for a short time that a celebrity is dead. The source of this rumor will experience a lot of negative notoriety when this is confirmed false. Anyone who repeats it will also have egg on their face for believing the internet without doing minimal fact checking. Tome Cruise is not harmed.

Second example, Someone is spreading false statements. The reactions could be to.. a) overreact like you suggest or b) ignore it. The source full of negative and/or misleading falsehoods will be recognized for being outrageous or at least as unreliable as a tabloid. People who want to believe these rumors will not be swayed one way or another by taking action at the source, making it pointless. Just like your “masnick is a weenie” statement is just noise.

Mike is not somehow harmed.

Welcome to the internet.
People do not always tell the truth here.
Liars eventually get called liars, Other things are recognized as being more useful and therefor rise to the top.

Anonymous Coward says:

Re: Re: Re:6 Re:

Also when is ICE going to seize Baidu?

Or is those laws just for the people who can’t defend themselves?

Why is Google China still serving music and movies?

I want to see the U.S. government seize Google’s assets and put hundreds of thousands out of work and billions out of the market.

Anonymous Coward says:

Re: Re: Re:8 Re:


You got Baidu, Google, Yahoo and Bing all powerfull and full of money doing exactly the things some people are saying are against the law, so now I want to know when are they going to be seized.

Have the U.S. government the balls to seize or those laws are just for the little guys who can’t defend anything and are easy target? are those laws for everyone or just for the poor?

F. I had it with this BS, either they show they are serious and go after Baidu that is a full of infringement and the other search engines or just STFU because they don’t have a clue about what they are doing.

Anonymous Coward says:

Re: Re: Re:4 Re:

Except that people are a bit smater then you give them credit.

Proof of that is P2P websites that have zero staff or money to pay for staff to curate the content, but somehow all those people get all the malware and fake files out of the system in seconds, is not that easy to spread bad information on the internet, even governments fail to do so even when their survival depends on it as recent events demonstrated LoL

Chosen Reject (profile) says:

Re: Re:

The same laws we have to keep speeders of the Autobahn. No wait, I meant the laws we already have in place to go after tax Brazilian tax evaders. No, no, no, I was actually referring to the laws we have that disallow the Chinese government to restrict free speech. Hold on, we don’t have any laws that prevent foreigners in foreign lands from doing things illegal in the US. Weird!

Of course, if those infringers are US based, we have plenty of laws that take care of them already. If they are foreign-based, then they aren’t infringing US copyrights, trademarks, and patents.

US companies might have copyrights, trademarks and patents in foreign countries that those infringers are based in. In which case, those US companies should complain to those foreign countries that said countries aren’t upholding said countries’ laws.

Almost Anonymous (profile) says:

Re: Re:

Where’s the freaking ‘off’ button on you? Do you just sit at TechDirt’s homepage hitting F5? Heck, I think I’d like you better if you just stopped at “Frist post!”

Now to your post. Let’s see, you’re a lawyer-in-training who thinks that our laws should apply to foreign countries. I think you may have skipped a few classes.

The Infamous Joe (profile) says:

Re: Re: Re: Re:

You’re slipping, pal. Are you suggesting that by violating a law you are automatically in that law’s jurisdiction, regardless of physical location? How many obscure laws from other countries are you breaking right now? Are you under that country’s jurisdiction now?

I think law school is having the opposite effect that you were hoping for.

velox says:

Re: Re: Re:5 Re:

“a lot of people are unfamiliar with how much American money is in Baidu. Tremendous amounts. Insane amounts. It’s entirely possible they’ve bought lobbyist protection.”

Anonymous, The crap you come up with sometimes is amazing.
Lessee… ‘Baidu hasn’t been seized because lobbyists are probably protecting them’.

Please recall that the domain seizures have been brought to us courtesy of career executive branch administrators at ICE, and not at the direction of elected members of Congress (with the latter being the more natural domain of lobbyists).
Notice that if lobbyists are able to sway the guys at ICE, then without prejudice we can plainly call it bribery and not campaign contributions.

So if you are suspecting that Baidu’s “insane” money does buy protection, it would appear that you are painfully close to saying that guys in ICE are susceptible to bribes…..Hmmm.

Anonymous Coward says:

Re: Re: Re:3 Re:

Why ICE didn’t seize Baidu? it is a COM you know.

They have many many pirate movies there, heck you can find everything for free and they have special sections just for that.

Do the U.S. have the balls to do it?
If not will they do it to India, Brazil, Russia, Italy, France and others?

Those arguments are a travesty, we all know the U.S. will do nothing against big players outside the U.S. borders because it would mean the end of American business worldwide, but you keep saying people need to surrender their rights to get something that is not even in their interest.

Anonymous Coward says:

Re: Re: Re:3 Re:

Baidu MP3 Search provides algorithm-generated links to songs and other multimedia files provided by Internet content providers. Baidu started with a popular music search feature called “MP3 Search” and its comprehensive lists of popular Chinese music (Baidu 500) based on download numbers. Baidu locates file formats such as MP3, WMA and SWF. The multimedia search feature is mainly used in searches for Chinese pop music. While such works are copyrighted under Chinese law, Baidu claims on its legal disclaimer that linking to these files does not break Chinese law. This has led other local search engines to follow the practice, including Google China, which uses an intermediate company called Top100 to offer a similar MP3 Search service.

Source: Wikipedia: Baidu

Baidu MP3 search with tones of (U.S. illegal) music.

Seize that if you have the balls to do it.

Anonymous Coward says:

Re: Re: Re: Re:

so thus that mean that India can seize all assets from American pharma companies that infringe on their laws?

Thus that means China can seize Google to make room for Baidu? or Microsoft?

Did every American go to China, India, Brazil, Russia, Italy and other places to file patents and trademarks?

This will just be wild to watch.

G Thompson (profile) says:

Re: Re: Re: Re:

What the…

Conflict of laws mean anything to you?

You realised you just basically stated that Thomas Jefferson et. al. were breaking the law in 1776 because they had previously chosen to submit to British law.

The USA has absolutely NO, NADA, NIX Jurisdiction over any citizen from another country UNLESS and only UNLESS that Jurisdictions proper forum has allowed such, and is usually on a case by case basis.

Oh and I can guarantee I break some sort of US criminal/civil Law every single day, the problem is the US would not stand a snowballs chance in hell of doing anything about it.

Anonymous Coward says:

Re: Re: Re:4 Re:

I think they’re trying to say that a person who posts comments on a website he vehemently disagrees with for 12 straight hours has an unhealthy obsession.

I’m not going to stoop to the level of impugning your academic or social skills, but I will say it’s difficult to tell if you really mean half of the things you say, or if you’re just trolling to elicit a response. I’m sorry for being disrespectful, but sometimes your comments appear to be contrary for the sake of being contrary. Some of your comments give the impression that you’re intentionally being closed minded or stupid.

If you aren’t trolling, I think a lot of people are being misled by comments that seem to be unnecessarily argumentative.

Again, I apologize for my impolite, unsolicited opinion.

Dark Helmet (profile) says:

Re: Re: Re:4 Re:

Honestly, I don’t care. It’s just that you’ve behaved like a huge cockasaurus rex today, so I thought I’d connect with you on a personal level in the hopes that we me might someday find ourselves locked in arms with one another, deeply I entwined in a passionate kiss as we watch broke back mountain and sip fine red wine over imported cheese.

That’s when I plan to kill you with the schwatz….

Richard (profile) says:

Re: Re:

What “other laws” do we have now that allow us to target foreign web-based operations that infringe U.S. IP?

Before you ask this question first ask:

“Is it necessary or wise to target foreign web-based operations that infringe U.S. IP”

If the UK had taken that attitude in the 19th century we would have gone after the US – because in those days US law allowed unfettered piracy of UK IP.

Should the Royal Navy have invaded the US in 1850?

Anonymous Coward says:

Re: Re:

Like COICA will change anything LoL

Do you really think that if you start targeting other countries business they will stand still and take it like a man?

Seize Baidu assets I dare you.
Seize Indian pharma products I dare you.
Seize Italian products I dare you.
Seize Brazilian business assets in the U.S. I dare you.

abc gum says:

Re: Re:

“What “other laws” do we have now that allow us to target foreign web-based operations that infringe U.S. IP?”

Well Pinky, it looks like we will just have to invade these freetard countries and show them who’s boss. We can not have people in other nations thinking they can just govern themselves now can we?

[/sarc jic]

G Thompson (profile) says:

Re: Re:

Oh the USA can in its infinite stupidity make as many laws as it wants to print, after a while you might run out of paper, or the money to purchase it from the countries you buy the wood pulp from though.

Oh and lack of enforceability on laws is the major statement here. the USA can make billions of laws that effect foreign aliens whilst those foreign aliens are not within the Jurisdiction of the USA.

The USA just cannot enforce those laws unless harmonisation happens within ALL countries.. Quid pro quo

But go ahead, keep making laws that show daily that the USA is becoming basically the USSA and will be more and more ostracised every day. No wonder Russia, China, Brazil etc are trying to make a global currency that is not based in any way shape or form on the US$

Jose_X (profile) says:

Re: Re:

Thanks for the fresh link.

The kind of potential abuse discussed in the clip is perhaps scarier than anything we are likely to ever see in the Patriot Act. It almost seems a few people can decide to murder or do just about anything and not have to explain their actions to Congress or to very many people ..and do so at will. Not only is having a few people make decisions for many without accountability or transparency a bad idea generally, but, when involved with potentially violent acts, this puts tremendous pressure on those few involved in the decision-making not to resist the will of those in the room with the big guns or vengeful nature. Judge, jury, and executioner merge into one.

We need to root this sort of thing out of our government/military. Those with weapons and entrusted with power need to be accountable to the people. I think it’s safe to say that we need as much transparency and separation of powers as is reasonable.

We are not going to see change if few people end up pressing this issue. We need volume.

Jose_X (profile) says:

Re: Re: Re:

>> The kind of potential abuse discussed in the clip is perhaps scarier than anything we are likely to ever see in the Patriot Act.

OK. Maybe not quite.

There is tremendous value in having laws on paper whose text appeals to good principles and state fair things. It is a sad day for sure when lawmakers will get away with passing disgusting laws and not just us having the executive branch interpreting laws liberally to their twisted ends.

It’s very important to have both fair laws and fair interpretations.

Anonymous Coward says:

Just read Wyden’s comments. What can you say? Obviously someone from the pirate community got his ear, as he made sure to hit on all their talking points.

It’s a free country and everyone has a right to bend the ear of their congressperson.

But his view is his alone in Congress, and ultimately the bill is going to pass.

Anonymous Coward says:

Re: Re: Re:

Nah. While it was suspected long ago, it became obvious once he started regurgitating Joel Tenenbaum’s defense brief.

He’s a cute little pirate puppet. Do you happen to know who the freetard on his staff is? Or was this the one politician that was dumb enough to drink Masnick brand Kool-Aid?

whatevs. The bill is still going to pass.

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