Lamar Smith Tries To Defend SOPA; Suggests That Infringement Is The Equivalent Of Child Porn

from the taking-the-high-road? dept

Rep. Lamar Smith, who introduced SOPA in the House, has now taken to the pages of the National Review to defend the bill… and yet he does so in a way that makes almost no sense at all. Frankly, some of it makes me wonder if he even recognizes what’s in his own bill… and what existing law is. Let’s dig in to some of it:

Claims that the Stop Online Piracy Act will censor legal activity on the Internet are blatantly false. Enforcing the law against criminals is not censorship.

Sigh. Not this again. Look: no one is saying enforcing the law against criminals is the problem. The concern is enforcing it against protected speech (i.e., not infringing speech). And even SOPA supporters’ lawyer of choice, Floyd Abrams, has admitted that SOPA would block protected speech (just not enough to concern him). But, more to the point, it undoubtedly is censorship. Law professor Derek Bambauer has pointed out that any blocking of speech is censorship — and that our society agrees that some forms of censorship are actually okay. The question is whether or not we agree that this form of censorship is okay.

The Stop Online Piracy Act specifically targets websites dedicated to illegal and infringing activity. Often based overseas, these websites are called ?rogue sites? because they flout U.S. law and face zero legal consequences for their criminal activity. Rogue sites not only steal America?s products and profits; they steal jobs that rightly belong here at home. This bill cuts off the flow of revenue to rogue sites by preventing criminals from selling and distributing counterfeit products to U.S. consumers.

Fluff and rhetoric with almost no basis, for the most part. First, the problem many of us have is that the definitions are super broad and do not “specifically target websites dedicated to illegal and infringing activity.” The definitions allow for much broader attacks. As for the so-called “rogue sites,” many of them do face legal consequences at home (witness Swedish prosecution against the Pirate Bay, lawsuits against RapidShare, MegaUpload and others — all three of which have been called rogue sites by supporters of this bill). Claiming they face no legal consequences is blatantly false. Furthermore, they all face significant business consequences. If they’re consistently bad actors, that limits their ability to build a significant business. The final sentence reverts to “counterfeit products.” Of course, just yesterday we went through SOPA supporters’ own numbers on this and showed that the issue of counterfeit products is miniscule. The problem is when they lump in dealing with the narrow problem of counterfeit products with a very different issue: copyright infringement. Let’s deal with the two problems separately. (Also, how do you “steal profits” and “steal jobs”? That’s meaningless political rhetoric.)

The bill defines rogue sites as websites that are dedicated to the facilitation of the illegal sale and distribution of counterfeit or pirated goods. Websites like Facebook and YouTube that host user content are not ?dedicated to? illegal activity and they certainly do not make a business out of ?facilitating? the illegal sale and distribution of counterfeit or pirated goods. But if a user posts illegal content on a website like Facebook or YouTube, current law allows rights holders to notify the website to remove the illegal content.

I’m sure Smith wants to believe this is true. But, it’s not. It’s proven false by the fact that Viacom is already suing YouTube for a billion dollars. If SOPA had been in place in 2007, you can bet that Viacom would have used the provisions in SOPA to kill off all YouTube revenue first, rather than filing DMCAs and then suing. Viacom clearly believes that YouTube is (or at least was) “dedicated to illegal activity.” And since Smith’s own bill allows for this private right of action, it doesn’t matter whether he really believes it will be used this way or not… all we need to know is how companies will use it, and we’ve got a long history under the DMCA to see that tools like this will absolutely be abused to shut down competitors and innovative threats.

The Stop Online Piracy Act is a constitutional bill that protects free speech and America?s intellectual property. The First Amendment is not an excuse for illegal activity. Simply because the illegal activity occurs online does not mean that it is protected speech. Like online piracy, child pornography is a billion-dollar business operated online. It is also illegal. That?s why law enforcement officials are authorized to block access to child-porn sites.

And this paragraph is the most problematic of all. First of all, we won’t know if it’s really “constitutional” until a court determines that. Many constitutional scholars have their doubts. Second, no one claimed that the First Amendment is an excuse for illegal activity. As we explained above, the issue is the collateral damage. Put forth a bill that narrowly focuses on actually infringing works, and this isn’t a problem. Here, however, it’s much broader. And, again, even the one constitutional lawyer defending SOPA (as part of his work for the MPAA), has admitted that, contrary to Smith’s own claims, SOPA “may result in the blockage of some protected speech.” Pretending this is an impossibility even when your most ardent supporter admits it… is weak.

But the bigger problem is bringing child porn into this. Smith claims that “law enforcement officials are authorized to block access to child-porn sites.” That struck me as an odd statement, because the lawsuit I remember concerning that issue actually said that such a clause in a bill violated both the First Amendment and the Commerce clause. This left me scratching my head, so I emailed a bunch of internet lawyers… and no one was aware of any laws that said law enforcement could just block access to child porn sites. There could be criminal trials that lead to sites getting taken down, but no one knew of legal process that allowed requiring others to block access.

Is there a secret law? Is Lamar Smith making things up?

More to the point, copyright infringement and child porn are very different crimes. Child porn is a felony. Copyright infringement, in most cases, is a civil offense. Yes, in some cases it can be criminal, but SOPA doesn’t just apply to criminal infringement. Punishment for the two should be quite different.

Similarly, this bill authorizes the attorney general to seek an injunction against a foreign website that is dedicated to illegal and infringing activity. The attorney general must go to a federal judge and lay out the case against the site. If the judge agrees, a court order will be issued that authorizes the Justice Department to request that the site be blocked.

Notice what Smith conveniently leaves out: in many cases under the bill (not all), they will go before a judge without the other side appearing.

According to estimates, IP theft costs the U.S. economy more than $100 billion annually and results in the loss of thousands of American jobs.

And according to analysis by the US Government Accountability Office, those estimates are complete bunk.

Congress cannot stand by and do nothing while some of America?s most profitable and productive industries are under attack.

The industries aren’t under attack. The business models of a few legacy players are under attack. Let’s be clear: there is more content (music, movies, books, video games, etc.) being produced today than ever before. There is more money flowing into these industries as a whole. People continue to spend and purchase these goods all the time. The attack is merely on a gatekeeper business model that focuses on trying to set up artificial scarcity.

Unfortunately, there are some critics of this legislation who are not serious about helping to protect America?s intellectual property. That?s because they?ve made large profits by working with and promoting rogue sites to U.S. consumers.

That claim keeps coming up without any evidence at all. It’s hard to believe Google profits much at all from infringement. Almost no one is clicking on Google ads on these websites, and Google only makes money if people click.

Google recently paid a half billion dollars to settle a criminal case because of the search-engine giant?s active promotion of rogue foreign pharmacies that sold counterfeit and illegal drugs to U.S. patients.

Totally misleading and irrelevant. That was a case of sites directly advertising via Google. No one has claimed that any of the rogue sites targeted by SOPA are buying ads on Google. This is nothing more the mud-flinging against one company (of many) that are against this bill.

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Comments on “Lamar Smith Tries To Defend SOPA; Suggests That Infringement Is The Equivalent Of Child Porn”

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42 Comments
gorehound (profile) says:

What a dick this guy is.Hopefully next year in 2012 we will see the end of his career.If people are smart they will never vote for him again.Rep. Lamar Smith is a traitor to our Country and way of life.But notice I am not picking on his Parry at all.There will be sell-outs on both main Parties and in 2012 all of those who do support this should never see the inside of a Government Office again.I am trying to be intelligent here and it is up to us to not vote for any who would so quickly sell-out our Freedom.
I read another Article here that also talked of how the MPAA pretty much wrote this Bill and made sure when they did that not one person who had any opposition was present at that time.They pre-stacked the deck as in cheating.
Maybe I am wrong but I don’t think so.I await reading others here who comment to see any other people’s views.

Anonymous Coward says:

Re: Re:

I would agree with the majority of this. However, being a shitty representative who doesn’t represent the best interests of his constituents doesn’t exactly make him a “traitor.” At best, you could accuse him of being “corrupt,” but I think “ignorant and short-sighted” is more accurate.

Save the “traitor” label for the actual treasonous types, like the Rosenbergs. It’s impossible to engage in actual debate when you’re accusing one side of committing a capital offense.

MrWilson says:

Re: Re: Re:2 Re:

Some people use treason and betrayal as equivalent terms. Smith is definitely betraying his constituents and the country’s well-being for special, monied interests.

“Outside legal spheres, the word “traitor” may also be used to describe a person who betrays (or is accused of betraying) their own political party, nation, family, friends, ethnic group, team, religion, social class, or other group to which they may belong.”

http://en.wikipedia.org/wiki/Treason

MrWilson says:

Re: Re: Re:4 Re:

It’s quite possible to argue that politicians that betray their constituents contribute to the detriment of our society and the economy enough to consider it treason. They contribute to conditions that lead to the premature deaths of American citizens (such as allowing pharmaceutical companies to keep affordable, life-saving generics off the market in order to protect their obscene profit margins). They may not pull the trigger on a gun, but they are making life worse for significant numbers of people, not only their constituents.

TtfnJohn (profile) says:

Re: Re: Re:2 Re:

Of course banana farmers should be paid! It’s the BFAA who shouldn’t be because they confiscate all potiential profit by having the banana farmer sign over all his bananas before s/he can sell even a single banana and don’t return a penny without first going through various devious and sometimes illegal accounting tricks to avoid paying the banana farmer!

(BFAA= Banana Farmers Association of America. BFAA@riaa.com ;-0 )

xenomancer (profile) says:

Re: Re: Re:3 Re:

Will someone please think of the seeds!!!! Oh, wrong story… Ahem, will someone please think of the rice farmers! People eating apples are cutting into the sales of rice cakes (mostly air). If this scourge isn’t stopped, the farmers markets will no longer be able to compete with backyard orange trees and the whole fruit industry will collapse!

(hint: rice cakes = popcorn)

anonymous says:

the guy hasn’t got a clue! he is full of shit! he is being ‘encouraged’ to put this bill through by the entertainment industries! he is totally ignoring very legitimate concerns over the content of the bill! he is totally ignoring the people who put him into the position he holds! hopefully he will be voted out of that position in the next elections! he needs to be investigated for corruption!

simple simon (profile) says:

“Like online piracy, child pornography is a billion-dollar business operated online. It is also illegal. That?s why law enforcement officials are authorized to block access to child-porn sites.”

Yet after years of having absolute authority to shut it down, child pornography still exists online. But SOPA will completely eradicate copyright “stealing”, you’ll see.

Where is the SOCP (Stop Online Child Pornography) bill? Oh, that’s right, no Hollywood lobbies backing that one.

Can someone please point me to the law the requires the recording and movie industries to release their products in a digital format? You would think if it was destroying their business, they would stop doing it and just go back to vinyl or 8mm. No, then people would just convert it and upload it and steal it that way. Damn, what ever will they do. Let’s see…um…ah…TAKE OVER THE INTERNET! That’s the ticket!

Rikuo (profile) says:

Sue him for defamation. He’s outright called critics of his bill criminals “That?s because they?ve made large profits by working with and promoting rogue sites to U.S. consumers. “

Even if we were to by a sane definition of rogue site being, let’s say one purposefully riddled with malware (let’s say a realistic looking copy of a bank website), he’s basically saying that myself and others are criminals.

Jeffrey Nonken (profile) says:

Do the MPAA et. al. understand that if they put a boatload of us out of work, there won’t be anybody left to buy their products?

Oh wait… this is going to boost the economy. Because Hollywood is our entire economy.

It’s going to boost music sales because the people who didn’t want to buy the music in the first place, or who couldn’t afford to, will suddenly have less discerning tastes and bigger budgets. (Especially the ones whose businesses were shut down on a whim.)

simple simon (profile) says:

The day after SOPA passes…

Google Search: techdirt

Search Results:

http://WWW.MPAA.COM
http://WWW.RIAA.COM

Google Search: step2

Search Results:

http://WWW.MPAA.COM
http://WWW.RIAA.COM

Google Search: youtube

Search Results:

http://WWW.MPAA.COM
http://WWW.RIAA.COM

Google Search: pirate bay

Search Results:

http://WWW.MPAA.COM
http://WWW.RIAA.COM

Google Search: God

Search Results:

http://WWW.MPAA.COM
http://WWW.RIAA.COM

A Guy (profile) says:

Repost

Here’s an old comment, but I think it bears repeating here.

DNS blocking doesn’t remove a site from the internet. That is your first mistake. That is also why DNS blocking will never work.

I don’t know what they do with child porn sites but I assume it involves getting local authorities involved to remove the content from the servers and track down the perpetrators.

You see, other countries will track down citizens whom engage in the vile and disgusting act of abusing children and spreading that abuse around the internet for fun and profit.

On the other hand, governments of other countries care a lot less that some guy in Hollywood or an already rich artist claims they aren’t making enough money off their population.

Any reasonable person sees that these two things are nothing alike and anyone that compares the sexual exploitation of defenseless children to not making enough money can probably go fuck themselves.

TtfnJohn (profile) says:

Re: Re: Re:

You can’t he was mummifed (tm – Apple — pending), placed in an iPad which was then placed in an iPhone and then in an iMac and then into an Apple II before burial all fitted to the rafters with RFID tags and GEO Location devices all of which will fail should SOPA pass and DNS servers can’t find any of the darned things cause they must all encourage piracy. They must! They just must!!! They just have to!!! Cause I say the do!!!!

/exit stage right muttering darkly to no one in particular

Heretic says:

What a tool. If he is resorting to such histrionics this early in the game then he knows he is in over his head.

He made a dumb move and now he is trying to defend the indefensible, making himself look more ignorant all the while.

Besides, his true morals are clear. He is willing to sell out freedom, America’s edge on the internet and all future gains that would bring to cater to Hollywood.

The only way this tool cares about child porn is if the MPAA and RIAA are selling it and not getting all of their revenue.

Heretic says:

Bringing in the exploitation of children in order to support something as blatantly corrupt as SOPA and PIPA only exploits them further.

How dare you. If you really cared about those child porn you would be using your position and influence hunting down the perverts behind those unspeakable crimes and delivering those kids from a living hell.

Instead, you evoke images of their suffering and draw their naked bodies over your own corruption, greed, and blatant disregard for many of the founding principles of this nation!

Words fail me. HOW DARE YOU!

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