RIAA Explains Its Interpretation Of SOPA; Which Doesn't Seem To Be Found In The Bill Itself

from the interesting... dept

Rafe Needleman put together a fascinating roundtable discussion over SOPA and PIPA involving Larry Downes and Mitch Glazier. Downes, you may recall, wrote an excellent article highlighting the myriad problems with SOPA. Glazier on the flip side, once (while he worked for Congress) sneakily changed copyright law without anyone noticing, to screw over musicians. Thankfully, his handiwork was undone after a bunch of musicians noticed and complained… though, by that point he had left to become a high-paid lobbyist for the RIAA — where he now holds the number two slot. He’s there to argue for the record labels, not artists, of course.

Glazier makes a bunch of interesting, if slightly incredible, statements during the 40 minute discussion — starting with his claim that the ProIP Act (from a few years ago, not to be confused with PROTECT IP from this year) allowed for the government to seize “criminal” websites. That’s not clear at all. While it is true that the government is relying on the text of ProIP for such seizures — the text in question was clearly designed to cover the seizure of things like machinery to print DVDs/CDs. There are significant legal questions, currently being heard in court, over whether or not ProIP actually allows the government to seize websites as it has.

Then they get into the meat of things, with Glazier bizarrely and incorrectly claiming that PIPA and SOPA are very similar. That’s pretty shocking since the two bills are extremely different in important ways. And while he notes at the beginning that the reasons for this new law were to apply what was in the ProIP bill to foreign sites, he doesn’t note that SOPA applies to domestic sites as well (something that SOPA supporters keep ignoring). He also claims that the exceptionally vague and broad definitions found in SOPA as to what constitutes “dedicated to theft of U.S. property” are nothing new or special — saying the first three come from the DMCA’s anti-circumvention provisions (a hugely problematic part of the current DMCA), and the latter two come from recent Supreme Court rulings. That’s an interesting take… and one that’s not quite true. For example, he claims that the inducement definition comes from the Grokster ruling, but that’s not true. The standard in the bill is much broader. Now, it’s true that the RIAA has pretended that the definition in the bill is what the Supreme Court said in Grokster, but the Supreme Court laid out some specifics that are not found in the bill.

Then there’s a stunning bit of ridiculousness. Downes points out the problems of letting private parties take down entire sites based on a mere portion of a site being infringing, and Glazier claims this is wrong, and that SOPA is only about enforcement — such that it means that “the remedy is limited” to a “portion” of the site. “So instead of saying, if a portion of the site is illegal, the whole site gets taken down, it’s the opposite. A court can say if a portion of a site is illegal, only that portion of the site can come down.” Now, that’s interesting. It’s also not true. What Glazier is referring to is the fact that the under the part involving the Attorney General, a court can order just a portion of the site to be blocked (but only to subdomains, not subdirectories), but the private right of action allows for any copyright, trademark, publicity right or patent holder to completely cut off payment or ads to a site based on an accusation. You don’t “cut off payment processors” to just a portion of a site.

But note the disingenuous trick. When challenged on the wider impact of the law, focus on one narrow part of it. Sneaky.

Next up Glazier claims that the going after payment processors and ad providers isn’t a secondary liability issue, because there’s no secondary liability on those guys. Of course, try telling that to Triton Media, an ad provider who the entertainment industry sued for providing ads on sites they felt were “rogue sites.” But, again, Glazier is being disingenuous by looking at the wrong thing. The concern isn’t the secondary liability directly on the ad or payment players, but on all of their clients. It’s over the fact that any site can have all ways to make money cut off with no court review. That’s ridiculous.

Rafe then asks Glazier to explain how much piracy has “cost” the “music industry” and Glazier again is misleading (seems he makes a habit of that). First, he only talks about the recording industry, which has been cut in half, rather than the actual music industry (which continues to grow). But he seems to attribute that entirely to piracy, rather than massive infrastructure and market changes. He notes that the number of major labels has dropped from six to four… but that’s because of mergers. Whether there’s any connection there to “piracy” seems pretty questionable. Then he notes less investment in artists. Yes, by the major labels. But that leaves out that more and more artists don’t need the majors to make money any more (whereas in the past they didn’t have much choice). Thankfully, Rafe calls him on some of this — noting the market changes and that unauthorized listens to songs might not be actual losses.

After Glazier admits that they don’t really have good data on how much unauthorized use represents real losses, Larry jumps in and points out that this is a key point — and that we shouldn’t be legislating before we have such data. He notes that SOPA requires the IP Czar to study the issue and come up with some data, but rather reasonably questions why we’re shooting first, and asking questions later.

The conversation then shifts to the DNS blocking aspect of the debate, a point on which Glazier really shows how to spin with the best of them, claiming that the (significantly worse) SOPA bill was a reaction to the tech industry’s concerns with PIPA. That is, in Glazierworld, the much broader remedies in SOPA, which aren’t limited to just DNS, are because his industry and the folks who wrote the bill heard the tech guys saying, “DNS blocking is bad,” and with SOPA are saying, “okay, well, we give you broad latitude to block something else, if you’d like — such as IP addresses directly.” That this actually makes the problem even worse, and fragments the internet even further, apparently does not occur to Glazier. This is why we shouldn’t let non-engineers write laws that impact technology, by the way. Downes properly points out how ridiculous this is, in that it leaves the court to decide if anyone is doing the required blocking in a “reasonable” manner — and as we’ve learned from the Great Firewall, when you have such ambiguity, service providers have every incentive to over-block. That’s what the RIAA/MPAA are hoping for, of course, but it should horrify anyone who understands how innovation works.

Glazier then makes sure to bring up the industry’s favorite comparison: child porn, claiming that DNS blocks are common to block child porn. Of course, that’s not quite true, and the CDT v. Pappert case highlighted how we, in the US, do not set up systems for over-blocking, even in cases of child porn. When Rafe challenges him on using “child porn” as an example, Glazier goes all patriotic, talking up the importance of the rule of law and whether or not we believe the rule of law should apply on the internet.

That, of course, is hogwash. Of course the rule of law applies on the internet. No one’s arguing that. What we’re arguing is that in their desperate attempts to bring back a mythical world that the record labels think existed twenty years ago, they’re seeking to massively change the rule of law such that it hinders all sorts of important innovations that everyone agrees should be perfectly legal. The RIAA and their pals at the MPAA are massively overreacting, as they have a long history of doing. The “rule of law” argument was used against the VCR and the mp3 player — both of which these industries declared should be illegal, because “the rule of law” must apply. So now they’re overreacting to the entire internet. Perhaps we should recognize their long history of crying wolf, and maybe, just maybe, not believe them this time.

Downes points out the ridiculous of the private right of action notices… and we learn the SOPA defenders key line in response to that. Glazier says that since payment providers and ad networks have a financial incentive to keep making money from customers, they’re unlikely to cut customers off. Apparently Glazier hasn’t paid attention to the DMCA. Under the DMCA, service providers also have incentive to keep their users and customers. Yet, to avoid any liability or even the threat of being dragged into court, their first move is to simply take things down. You can bet that will happen here. Of course, this is emblematic of how the RIAA/MPAA folks view these types of issues. They think that as long as cash is being made, service providers will want to continue. But they underestimate the hassle and the fear of being dragged into litigation. To avoid any sort of liability, the ad providers and the payment processors are very likely to simply cut off sites that are accused — especially if they’re accused multiple times. Why bother with the hassle and the risk?

Towards the end of the interview, Glazier falsely claims that the tech industry was either at or invited to the table to negotiate on SOPA. This is false. Yes, the Chamber of Commerce and the MPAA found a few “friendly” (but misguided) tech companies like Monster Cable (who claims that eBay, Craigslist, Costco and Sears are all “rogue” sites) and GoDaddy (who itself could fit under the definition of a “rogue site” in the bill), so they could pretend tech was at the table. But, considering that some of the largest tech industry groups — CEA, CCIA and NetCoalition were asking for a seat at a table for a while, and were denied, Glazier is, once again, being entirely disingenuous with his claims.

On the whole, Glazier’s defense of SOPA isn’t too surprising, but it’s really misleading, and it’s important to see how they mislead, because otherwise people may get fooled into believing the bill is not as disastrous as it really is. Throughout the interview, Mitch continued to talk about going after foreign sites, never acknowledging how SOPA isn’t just about foreign sites, and even PIPA puts liability on domestic sites. If it’s really true that just a few foreign sites are “the problem,” (and they’ve yet to establish how real “the problem” is), then why craft such broad laws with vague definitions that will surely have unintended consequences… unless the plan all along is to stretch the boundaries of such a law?

Filed Under: copyright, e-parasite, larry downes, mitch glazier, protect ip, sopa
Companies: riaa