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SOPA: Washington Vs. The Web

Sopa Piracy Censorship

First Posted: 12/14/11 06:01 PM ET Updated: 12/16/11 08:52 AM ET


In recent decades, the line between Hollywood and the Judiciary Committee has blurred. In the early 1990s, then Rep. Sonny Bono (R-Calif.), of Sonny & Cher, drafted a bill for the Judiciary Committee that extended the length of copyright protection by an additional 20 years. Bono's Southern California district was very close to Disneyland, and the copyrights on Disney's oldest Mickey Mouse cartoons were nearing their expiration. Bono's efforts ensured that Mickey's first appearance in "Steamboat Willie" would not enter the public domain until 2023.

Senate Judiciary Committee Chairman Pat Leahy (D-Vt.) is Hollywood's current favorite son in Washington. His top two career campaign contributors are Time Warner and Disney, according to data compiled by Center for Responsive Politics; Time Warner has even given him cameo appearances in Batman movies, an experience Leahy talks of proudly.

Another committee member, Sen. Al Franken (D-Minn.), who has repeatedly called net neutrality "the most important free speech issue of our time," is a co-sponsor of the new anti-piracy legislation.

An aide to Franken says that the issue is personal: "He is ... a copyright holder and he has worked with creatives and copyright holders." Franken has written several best-selling books, and was a longtime star of NBC's Saturday Night Live.

On the Republican side, former Judiciary Committee aides Allison Halataei and Lauren Pastarnack recently signed on as lobbyists for the entertainment industry, as Politico has reported.

According to an analysis by the Sunlight Foundation, a nonpartisan government transparency nonprofit, a full 16 former House Judiciary Committee staffers are now lobbying on intellectual property issues, with all but a handful pushing to enact SOPA.

In May Leahy introduced Protect IP, declaring that it "will protect the investment American companies make in developing brands and creating content and will protect the jobs associated with those investments."

The bill would give the Department of Justice the power to bring down foreign websites "dedicated to infringement" without going through the hassle of a trial -- or even a traditional hearing. All DOJ has to do is convince a judge to approve the department's view that a site is in fact "primarily dedicated to infringement"; the law doesn't require the judge hear any defense from the website's operator.

Currently the government can only shut down domestic websites, and only if it plans to go to trial; taking down a website can only occur if a judge is shown probable cause that the site was used in the commission of a crime. The new bill doesn't require criminal activity for a takedown -- only that the DOJ believes the site be "primarily dedicated to infringement."

Even with its existing powers, the government has improperly shuttered legitimate websites. In late 2010, Immigration and Customs Enforcement brought down dozens of websites with names like "boxedtvseries.com" and "dvdscollection.com." Most of those sites quickly moved their operations to identical sites with different domain names. But in the same sting, ICE also knocked out a handful of quite popular music blogs that artists frequently leaked songs to as a promotional tool.

On December 8, 2011, after more than a year, one of those websites, dajaz1.com, went back up. ICE, which declined to comment for this article, decided not to prosecute.

Under Leahy's bill, the government would have no obligation to ever even pretend to be proceeding toward a trial in order to keep a site suppressed indefinitely.

"Can the government be trusted to get this stuff right?" Asks Andrew Bridges, a lawyer with Fenwick & West who represented dajaz1.com throughout the proceeding. "I think the obvious answer is no. There's a reason why we have trials."

Leahy's bill would also empower corporations to demand that payment processors, advertisers and search engines stop doing business with sites the companies believe to be dedicated to infringement. A Hollywood studio could claim a website is "dedicated to infringement," and tell Google to stop registering the website in its search results. If Google protested, the company could haul Google into court.

This new set of corporate liabilities -- known as a "private right of action" -- prompted resistance from Wall Street. Both JPMorgan Chase, which operates a major global payment processing business, and the Financial Services Roundtable, a lobbying group representing the nation's biggest banks, began pressing Congress to reject the bill, arguing that it was unfair to hold banks accountable for the sins of others. Banks and payment processors didn't want to have Hollywood telling them who to do business with.

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In 2010, Secretary of State Hillary Clinton blasted China's Internet censorship as an "information curtain."

But the way Protect IP tries to cut off foreign pirates' access to resources within the U.S. mimics many of the Chinese government's methods. Even former Sen. Chris Dodd (D-Conn.), now chairman of the Motion Picture Association of America, invoked China's methods when challenging Google's claim that it couldn't block access to specific websites on its search engine.

"When the Chinese told Google that they had to block sites or they couldn't do [business] in their country, they managed to figure out how to block sites," he told Variety.

The government's ability to shut down sites would involve federal tampering with the domestic Domain Name System -- a basic Internet building block that links numerical addresses where Internet data is stored to alphabetical URL addresses that people actually type into web browsers. The Chinese government censors the Internet for its citizens by engaging in DNS blocking, restricting access to certain domains.

Tech experts warn that giving the U.S. government such powers could hinder the functionality of many web applications, severing the connection between domain URLs and numerical data addresses that many programs rely on. It would also hamper efforts to introduce a new security system known as DNSSEC, which national security programmers have been developing for years.

"The Act would allow the government to break the Internet addressing system," wrote 108 law professors in a July letter to Congress. "The Internet's Domain Name System ("DNS") is a foundational building block upon which the Internet has been built and on which its continued functioning critically depends. The Act will have potentially catastrophic consequences for the stability and security of the DNS."

Leahy's bill has whipped Internet advocacy groups into a frenzy. Dozens of nonprofits, including the Electronic Frontier Foundation and The Center for Democracy and Technology, issued strong statements condemning the bill. Fifty venture capitalists sent a letter to the Hill warning lawmakers that Leahy's bill could cripple tech startups with absurd legal fees prompted by Hollywood.

"Either they don't understand the basic fundamentals of the Internet," says Fred Wilson, referring to the broad congressional support for the bill, "or they're just doing this to get the MPAA and the [Recording Industry Association of America] off their backs." Wilson is managing partner with Union Square Ventures, the New York-based venture capital firm that seeded Twitter, among others.

By the fall, things would get much worse for tech companies. Amid intense lobbying pressure, the House would expand Leahy's bill, giving the U.S. Attorney General the power to shut down domestic websites without any intent to proceed to trial. Once that news became konwn, a slew of U.S. web companies, including Twitter, eBay and HuffPost's parent company AOL, significantly ramped up lobbying efforts against the legislation.

But during the spring and early summer, the response from tech companies to Leahy's bill, though negative, was relatively muted. Most tech giants simply did not believe that such an extreme bill would ever really pass, according to lobbyists who worked against the legislation and staffers for Senators who oppose it. Leahy had introduced a previous Hollywood anti-piracy bill, known as COICA, in September 2010; that attempt had floundered for six months before he rewrote it as Protect IP. Sen. Ron Wyden (D-Ore.) responded to pressure from online activists by quickly putting a hold on Protect IP, preventing it from coming up for a vote indefinitely. Tech-friendly lawmaker Rep. Bob Goodlatte (R-Va.) was tasked with drawing up the House version, which Silicon Valley was assured would be far narrower in scope than Leahy's effort.

But over the summer, Hollywood ginned up support anywhere it could.

"Hollywood is really putting the screws to just about everybody they do business with. Netflix, the Writers Guild -- they're all coming to me and saying, 'Can't you say something good about this?' " says Public Knowledge's Sohn.

Several unions associated with the entertainment industry endorsed the bill, including the Teamsters, a decidedly non-celebrity trucking union that works with Hollywood loading and transporting films and supplies. And since courts would ultimately have to decide what constitutes a site "dedicated to infringement," Leahy's bill would create a whole new realm of legal disputes, offering trial lawyers their own slice of the Internet.

The result was a perfect agglomeration of traditional Democratic Party constituencies, enabling Leahy to quickly round up 21 Democrats as co-sponsors -- including some of the most progressive and Internet-friendly members of either chamber. Top members of the Democratic leadership, including Sens. Chuck Schumer (D-N.Y.) and Dick Durbin (D-Ill.), signed on alongside progressive stalwarts, like Sherrod Brown (D-Ohio) and Amy Klobuchar (D-Minn.), to the chagrin of Internet freedom groups who had once counted all of them as allies.

All 22 Democratic co-sponsors of Protect IP previously voted to protect net neutrality, a policy that prevents corporate telecommunications giants from dictating the accessibility and functionality of individual websites.

NBC Universal is one of multiple television behemoths lobbying in support of the bill, as is News Corp., the parent company for both Fox Pictures and Fox News. In the past six months, Fox News, Fox Business, MSNBC and CNBC have remained silent on Protect IP and SOPA, the house equivalent, according to a HuffPost review of cable TV records. Both Fox and NBC declined to comment for this article. News Corp. Chief Rupert Murdoch has personally lobbied Congress on Protect IP, meeting with Senate Minority Leader Mitch McConnell (R-Ky.) among others.

AOL Inc., HuffPost's parent company, is lobbying against the bill; CEO Tim Armstrong has personally met with President Obama.

* * * * *

While Washington has demonstrated little enthusiasm for taking substantive action on the jobs crisis, lawmakers always try to portray to whatever else they're working on as jobs-oriented. Obama heavily touted a Bush-negotiated free trade pact with Korea as a job-creator, though the government's own numbers on Korea imply a "negligible" impact on American jobs.

Even in inter-corporate fights, jobs remain the focus of every legislative pitch a lobbyist makes, and piracy provides a natural hook: stopping foreign websites from pirating U.S. goods would create American jobs!

The Motion Picture Association of America -- a lobbying group for the dominant Hollywood studios -- is pushing that line harder than anyone else in the fight. But amid epic unemployment, few voters are interested in prioritizing the complaints of silver-screen celebrities over the American middle class. So former Sen. Dodd, now the chairman of the MPAA, has embarked on an ambitious lobbying and PR campaign emphasizing the many less glamorous jobs involved in the film industry. During the last Congress Dodd moved more large and complex legislation through Congress than any Senator in modern memory, taking a lead role in the Wall Street overhaul and credit card reform, among other bills. If anybody can lead SOPA through this Congress, it's Dodd.

"Behind Hollywood's red-carpet image lays a blue-collar reality. Most of those 2.2 million jobs are held by middle income families and small-business owners, men and women whose names will never appear on a theater marquee, but whose efforts are critical," Dodd said in a Nov. 16 speech before the Hollywood Chamber of Commerce, the organization responsible for the "Hollywood Walk of Fame" honoring film and music celebrities.

Dodd's 2.2 million jobs figure, however, exaggerates Hollywood's contribution to the American economy. According to supplemental data provided to HuffPost by MPAA, only 272,000 people work for movie studios and television companies. The lobby group claims that an additional 430,000 people work in related "distribution" jobs dependent on Hollywood, legal web streamers like Netflix, the few remaining video store clerks and cashiers checking out DVD purchases.


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