from the something-must-be-done dept
I can remember Ms. Espinel coming here, some time ago to talk about the progress she intended to make in dealing with the criminal activity that steals American intellectual property, particularly entertainment content, and provides it to viewers, and that they were going to work really hard, with other American corporations that were supporting that activity to try to knock it down.Almost everything Senator Whitehouse said in this statement is either wrong or totally clueless. It does not speak well of him as a Senator to be so misinformed about some rather basic things. First, there are the basics. A search engine is not and should not be illegal. Yet, Senator Whitehouse doesn't seem to understand the different role of a system like The Pirate Bay from a site that actually hosts or uploads infringing content. Second, at the time of the hearing, the Pirate Bay is down, so his claims pretending to show the site are clearly a lie. It's been in the news a lot that the site is gone. You'd think some staffer would have told Senator Whitehouse not to use that example.
So while we were having this hearing, I picked up my iPad, and I went to Google, and I Googled "pirate movie." And Google gave me "The Pirate Bay" [holds up his iPad] which is an illegal enterprise, operating out of Sweden. And if you go to the page where you would get access to the pirate content, it says "get access now" and underneath it you have the flags of Visa, of Mastercard, of American Express, of Cirrus and of Paypal. And below that it tells you all the devices it works on and shows you the logos of Apple, Android, and so forth.
It looks to me like this criminal activity is still being wrapped around with the apparent support of a wide variety of American corporations. [Incredulous expression]. Explain to me how there's been progress made.
Third, a Google search on "pirate movie" does not link to The Pirate Bay at all. Here's the search done on Google:
Senator Whitehouse appears to be flat out lying about what happens when you do such a search on Google, and then compounding it by lying about going to The Pirate Bay. On top of that, his description of what he claims he saw on The Pirate Bay appears to be totally false as well. And while some of my critics may find this difficult to believe, I've never used the site (other than occasionally reading some of its blog posts) so I reached out, via Twitter, to multiple people who had used the site regularly to see if his description was accurate. None could ever remember seeing credit card logos or Apple/Android logos. And, why would they, really, since the content found on The Pirate Bay was usually just pure files and available for free. So there would be no need to post credit card logos or even device compatibility, since that would depend more on the kinds of apps you used to view/listen/read the files obtained. Yes, there were tons of ads on the site, people point out, but they tended to be for crappy porn sites and the like.
In other words, almost every detail of what Senator Whitehouse describes is a lie. He may be describing some other site, but he didn't find it with the search he described and it wasn't The Pirate Bay. And even if there were logos from American companies, anyone can set up a website with such logos and it means nothing about whether they're complicit.
And then he demands that something must be done?
Marti barely gets half a robotic sentence out in response, saying that "criminal actors, criminal enterprises have no limits" when Whitehouse cuts him off with some more nonsense:
They actually do! [Holds up iPad again] There are ways in which these companies could go to court and try to knock this stuff down. There are ways in which prosecutors can have discussions with companies about aiding and abetting offenses and about being accessories to offenses. There's a lot that can be done in this area, it seems to me!Marti points out that he was talking about something entirely different -- that sites will of course put up logos to make themselves try to look legit (though he doesn't go so far as to point out that Senator Whitehouse's suggestion that because a site puts up a logo, that doesn't mean the company whose logo was put up isn't "aiding and abetting" a damn thing).
Even more to the point, Whitehouse's claim that companies can "go to court and try to knock this stuff down" also makes no sense. Under what law? What legal issue is there in the (fake) circumstances that Whitehouse describes? At most, there might be a trademark violation, and does he really think it's worth company's time to go after such fly-by-night sites for trademark violations? And the whole "aiding and abetting" claim is ridiculous. Is Senator Whitehouse honestly claiming that if a site that offers up infringing works notes that the works can work on Apple or Android that Apple or Google are "accessories" to a crime? Isn't a Senator supposed to understand the law?
Whitehouse then turns to Michelle Lee, who used to work at Google, but on patent policy, not copyright, and asks her if Google could stop this. Though, again, he's flat out lying about what Google is supposedly doing. It's a bizarre question. And Lee just says she doesn't know the answer to that question (how could she when it makes no sense). Whitehouse gives a sarcastic "Hmm!" in response, as if he's discovered something -- other than actually revealing his astounding ignorance. He further claims that because Lee was a deputy general counsel at Google (again on patents, not copyright issues) that it shows that Google didn't really care about this issue. Really?
Finally, he appears to attack Marti for not having done anything, despite the fact he's not in the job yet, and then claims that all of this proves that the "voluntary" process that Espinel championed (like the ridiculous "six strikes" agreements between some ISPs and the legacy entertainment companies) is not enough. He seems to clearly be hinting that we need more government action, or more SOPA-type laws, based on an entirely false scenario that either he or his staffers (or some... lobbyists) made up and handed to him. Instead, all it shows is him getting angry in a manner that displays his near total ignorance of the topic at hand.
Is it really too much to ask that the people who make the laws impacting technology not be totally ignorant about both the laws and the technology? Frankly, Senator Whitehouse owes Marti, Lee and basically all internet users an apology.