Bills recently introduced in Congress to give the government more power to stop online piracy by shutting down “rogue” foreign websites and forcing U.S. websites to cut links and services to them haven’t gone over well, drawing fire from Google, Facebook and other leading web companies and advocacy groups, who fear that such drastic measures could “break the Internet.”
But now Sen. Ron Wyden (D-OR) has what he thinks is a better plan: drafting a new piece of legislation from the ground up that would include input from the online community from the get-go.
“Much more discussion between folks on the content side and technology companies can help us to strike a better balance,” Wyden told TPM in a phone interview.
To start that process, he and a bipartisan group of lawmakers from the House and Senate released a discussion draft on Thursday night outlining what they believe online piracy legislation should include, such as giving the International Trade Commission the primary power and responsibility to crack down on piracy, instead of the Justice Department, as in prior bills, including the House’s controversial Stop Online Piracy Act.
“Right now, piracy is being dealt with in the legal system, through a magistrate, narrowly in scope” Wyden said, “That doesn’t take into effect that this is a broader issue of international commerce.”
Wyden’s document puts it more bluntly: “When infringement is addressed only from a narrow judicial perspective, important issues pertaining to cybersecurity and the promotion of online innovation, commerce and speech get neglected.”
Entitled “Fighting the Unauthorized Trade of Digital Goods While Protecting Internet Security, Commerce and Speech,” the proposal was co-authored by Maria Cantwell (D-WA), Jerry Moran (R-KS), Mark Warner (D-VA) and Representatives Jason Chaffetz (R-UT), John Campbell (R-CA), Darrell Issa (R-CA), Zoe Lofgren (D-CA), Anna Eshoo (D-CA) and Lloyd Dogget (D-TX).
The document isn’t the draft of a bill, but rather a starting point to elicit comments from the online community, including users, which will be used to draw up actual legislation.
“We are putting this out online so that folks will have a chance to weigh in on it,” Wyden said.
Wyden, Chairman of the Senate Finance Committee’s subcommittee on international trade, was arguably the first to sound the alarm about the negative effects of previous online piracy legislation, moving to block the Combating Online Infringement and Counterfeits Act in November 2010 and its successor, the PROTECT IP Act (PIPA), in May.
Wyden’s new draft outline offers a substantially different perspective on combating online piracy than those bills, one far more in line with Google and other web companies, who have advocated a “follow the money” approach of cutting off web pirates through their revenue streams, rather than imposing on law-abiding companies to sever ties with suspected pirates or face legal action.
The latter approach is advocated by so-called “content” companies, aka Hollywood, represented by the Motion Picture Association of America and the Directors Guild of America, who take issue with how easy the web has made it to pirate their offerings.
As Wyden told TPM: “What’s troubling to some of us [lawmakers] is how those in the content sector appear to be using PIPA and SOPA and government in general as a club to pound away on the innovative sector online.”
Wyden also noted that his father was an author, so he understands the plight of the content producer.
Although Wyden’s approach still requires web companies to sever ties with known pirates, the primary actor who gets to issue such an order to those companies in his proposal isn’t the Attorney General, as in the case of the Stop Online Piracy Act, but rather the ITC, which Wyden and his like-minded colleagues believe is more logically positioned to deal with cases of international copyright infringement.
As the draft reads:
“Under our proposal, the ITC would be authorized to initiate an investigation at a rights holder’s request and issue a cease-and-desist order against foreign websites that provide illegal digital imports and/or facilitate the importation of counterfeit goods…An ITC cease-and-desist order would, under this proposal, compel financial transaction providers and Internet advertising services to cease providing financial and advertising services to the foreign website.”
Additionally, the proposal also addresses some of the complaints that the language for issuing such an order under SOPA and other prior legislation is too broad.
SOPA, for example, states numerous times that a website can be deemed a “foreign infringing site” not only if the whole website is dedicated to piracy, but if “a portion thereof” is “committing or facilitating the commission of criminal violations.”
A definitions section of the current SOPA legislation, Section 103 (a), does little to clear up the issue, stating that a site can be considered “dedicated to theft of U.S. property” if it is “is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates” piracy.
Compare with Wyden’s draft: “…to issue such an order, the ITC would need to find that the foreign website is “primarily” and “willfully” engaging in infringement of U.S. copyrights or willfully enabling imports of counterfeit merchandise.”
Wyden and his colleagues think that more narrowly tailored language is necessary to maintain any piracy bill’s effectiveness.
“One of the main concerns we’ve seen in the bills is this bad language,” Wyden told TPM. “We need to make sure that whatever legislation passes sends a powerful message to bad actors but does so in a way without doing damage to the architecture of the Internet.”