Parade Of Strawmen Dominate House Hearing About Online Infringement
from the the-lies-told-to-congress dept
First up, we have esteemed and respected First Amendment lawyer Floyd Abrams, who (it is always said) defended the NY Times in the Pentagon Papers case many years ago. While Abrams is widely respected, it feels like lately he's been getting quite sloppy in his thinking. Late last year, he published a piece trying to differentiate Wikileaks from the NY Times/Pentagon Papers situation, and was widely criticized for getting many of his facts wrong -- undermining his entire argument.
Separately, various parties in the entertainment industry apparently hired Abrams to write a paper defending COICA and domain seizures as not violating the First Amendment. The entertainment industry and domain seizure supporters now point to that paper and stick their fingers in their ears every time anyone points out how domain seizures are, quite clearly, prior restraint. At the hearing, Abrams reprises this "there's no violation" (pdf) claim, but once again the reasoning is tortured, at best, and built by setting up strawmen to knock down, initially, before a more balanced section later in his talk. From the beginning though, strawmen abound:
It is one thing to say that the Internet must be free; it is something else to say that it must be lawless. Even the Wild West had sheriffs, and even those who use the Internet must obey duly adopted laws.... Thus, it is no surprise that libel law routinely applies to material that appears on the Internet just as it does to other material.... Copyright law is no different. One current treatise succinctly notes, "[a]ll existing copyright protections are applicable to the Internet."Note the strawman? He seems to be claiming that critics of domain seizures are suggesting copyright law does not apply online. But that's simply not true at all. Why make that claim other than to avoid the actual First Amendment issues raised?
The law could not be clearer, however, that injunctions are a longstanding, constitutionally sanctioned way to remedy and prevent copyright violations. That premise was explicit in the critical concurring opinion in the Supreme Court’s most famous prior restraint case, assessing publication of the Pentagon Papers in New York Times Co. v. United States. As Justice Byron White’s concurring opinion observed in that case, "no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another."Again, this is the same strawman. No one is arguing that copyright infringement cannot not be dealt with via injunctions. We're arguing that non-infringing speech is being taken down without a proper injunction. Abrams does address some of these issues later in his talk, and even brings up the takedown of mooo.com. While he urges that Congress understand the tradeoffs, he doesn't seem particularly troubled by the existing mistakes made in seizing domains.
Finally, at the end of his talk, he goes back to the strawmen. He brings up two arguments that he claims he hears from civil liberties groups, who he normally sides with, which he disagrees over. The first is that censorship by seizing domain names makes the US less credible in discussions with other countries who censor. Abrams dismisses this by saying it's okay to censor this way because copyright infringement is not protected by the First Amendment. Again, he is missing the point in a big, bad and dangerous way. The concern people have is not about infringement being censored. After all, specific instances of infringement can be targeted. The concern is over the non-infringing speech that is also censored as a part of this. On top of that, he doesn't seem to understand how these seizures are already being used by foreign nations who censor content. They are simply mimicking Abram's defense here. When he says "copyright infringement is not free speech," they just say "right, same thing here, speech promoting other political parties is not free speech."
Abrams second "objection" that he's heard from civil liberties groups is "that stealing is somehow less offensive when carried out online." I'm not sure from whom he heard that, because I've never heard that argument made at all and I follow this stuff pretty closely. I'm guessing he's conflating a few different issues. What many people will point out is that (1) infringement is different than theft and (2) infringement online has a very different impact than "theft" of the same content in the offline world and (3) there are different and much more effective ways to deal with infringement online (mostly by way of smarter business models). That's a very different argument than the strawman Abrams presents in his testimony.
Moving on, we have our favorite strawman conflater, John Morton from Homeland Security's Immigrations and Customs Enforcement unit, who also reprised various strawmen (pdf) in his statement. Morton's specialty is in talking up the harm and danger of one specific type of trademark infringement, vaguely lump it together with unsubstantiated (or outright false) claims from industry representatives, and then pop out at the other end with a claim that stopping copyright infringement is necessary. It's ridiculous when you break it down, but watch him do it here:
Criminals are attempting to steal American ideas and products and sell them over the Internet, in flea markets, in legitimate retail outlets and elsewhereOkay. That's about counterfeiting, which is trademark infringement. Check.
From counterfeit pharmaceuticals and electronics to pirated movies, music and software, IP thieves undermine the U.S. economy and jeopardize public safety.Well, there's a variety of different things there, and the claims that counterfeit movies, music and software jeopardize public safety has been shown nowhere, but it's nice to see Morton lump them all together. The only area where there is a potential risk for safety is with counterfeit fake drugs, but Morton and ICE never seem to distinguish between grey market generic pills that are perfectly safe and helpful and actual fake drugs. Because, you know, that would show how small this issue really is.
American jobs are being lost, American innovation is being diluted and the public health and safety of Americans is at risk -- and organized criminal enterprises are profiting from their increasing involvement in IP theft.Almost nothing in the statement above can be supported by actual evidence. The claims of job losses have been debunked. The public safety issues are extremely limited to very specific cases, though Morton pretends it applies to everything he's talking about, and outside of a very small set of trademark infringement, the claims of organized crime profiting from this stuff has also been totally debunked (the recent SSRC report had a nice section debunking this -- and yet Morton still claims it's true). He's pushing past strawmen into lying.
From there he goes on to talk about the importance of enforcement (i.e, play up his own role), but really focuses mainly on copyright issues, which again, applies to almost none of what he set up in the intro to his speech. It's the worst kind of strawman conflation out there. Morton goes on to highlight various enforcement efforts, including praising the domain seizues, insisting there's no due process problems with taking down non-infringing speech with no notice to website owners, because they're free to protest later through the courts. Basically, it's the same strawman speech he's given before, which responds to none of the serious questions raised by the massive technical and legal errors made by the staff working for him.
Those were the two key speeches that were problematic. GoDaddy also gave a presentation (pdf), which is basically all about how it is quick to respond to law enforcement and claims of illegal activity and suspended 150,000 websites last year. Odd that there don't appear to be concerns that it may have done so overzealously, as is often accused. However, GoDaddy does point out that it has some concerns about COICA, and specifically with the DNS filtering aspects of it. And, finally, as already mentioned, Google explained why it's not the enemy (pdf) but that wasn't what the committee wanted to hear. All four speeches are embedded below.