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

Politics

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.

Filed Under: child porn, copyright, first amendment, lamar smith, pipa, protect ip, sopa