Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet (44 page)

Among the biggest business-related negative impacts of SOPA would have been the increased liability concerns and monitoring costs not just for existing
companies, but for the next Google, Facebook, or Twitter. SOPA would have made it far more difficult for new platform startups to get funded and reach commercial viability.

Tech companies were frustrated by the legislative campaign because they were already doing so much to respond to and remove infringing content. YouTube, for instance, offers watermarks to help rights holders track and identify copyright infringing content and Google demotes sites with high rates of illegal sharing. Others have taken creative steps to combat specific problems, like counterfeit drug sales online. Our companies correctly recognize that fake pharmaceuticals are a unique public health and safety threat that should take precedence over other commercial squabbles over trademarks, brands, patents, and copyrights.

Yet in addition to the lack of understanding among policymakers about these voluntary measures, there are often not similar questions being asked of the entertainment industry about what it’s doing to help solve the problem—aside from suing others and lobbying for laws like SOPA.

Much more could be done to further reduce piracy by following the models of iTunes and Netflix—offering legal content that consumers could easily buy online and watch or listen to on the device of their choice.

The entertainment industry has spent years fighting innovation rather than capitalizing on the Internet’s role as a low cost distribution method.

The industry hoped to create a sense of urgency on Capitol Hill so the logic of its proposed solution—even greater control and censorship of the Internet—would not get much scrutiny. To do this they repeatedly used misleading data on piracy. Part of CCIA’s strategy to fight against SOPA-like legislation has been to deploy hard economic data to show the reality of the entertainment industry profits, online piracy and the collateral damage to other industries if SOPA were enacted.

An independent Government Accountability Office report in April 2010 showed that no reliable evidence or statistics exist to support the extreme claims of the entertainment industry of about $20 billion in losses from online copyright infringement.

The entertainment industry has actually thrived over the last decade and is not suffering from Internet abuse, as is sometimes claimed. The most recent evidence comes in “The Sky is Rising,” an independent study commissioned by CCIA that shows entertainment production is in a renaissance period. More content is being created and more money per household is being spent on entertainment than a decade ago—a 15-percent increase in fact. This renaissance has created new winners and losers however, and some established players, who have been disrupted, are seeking to secure through political measures what they’re losing in the marketplace.

In addition to not understanding the real scope of the piracy problem, those pushing SOPA both outside Congress and within did not consider the collateral
costs to other industries and users that would have suffered under SOPA. These include news organizations, libraries, academic institutions, and other sectors that rely on fair use exceptions to copyright rules. Released in 2007 and updated in 2010, CCIA’s Fair Use Study found the economic contribution of fair use industries is greater than that from the industries pushing SOPA. The economists from Capital Trade Inc. found that one out of eight U.S. workers is employed by a company that benefits from the protections afforded by fair use. And industries relying on fair use and other copyright exceptions make up one-sixth of the U.S. economy—a significantly higher portion than those industries claiming damage from online piracy.

Internet industry lobbyists, including company executives, spent countless hours in meetings on Capitol Hill explaining how the Internet actually works and advocating for more targeted, less draconian measures to curb the specific problem of foreign websites dedicated to piracy of U.S. copyrighted material. It was difficult for Internet industry CEOs to take the SOPA threat too seriously at first because it seemed so obviously wrongheaded. What they may have not fully realized then is that the political clout of the established corporate right holders in Washington put the Internet ecosystem at a severe disadvantage from the start. That meant that even solid legal and policy arguments delivered by very capable underlings would not be enough.

Company executives understood the scope of potential damage to the Internet and simply expected “the powers that be” would understand that and bring the legislation to a quick halt. It took several months for the senior management of very popular Internet companies to accept that no, Congress did not understand the Internet and yes, they were really going forward with the bill anyway.

A bipartisan group of House members had also urged lobbyists to get these Internet company CEOs to call them and be more personally public in their advocacy. This was of course to counterbalance CEOs in the politically established entertainment rights owner industries, which had already been doing so consistently. Members of Congress pay much more attention to CEOs, and to their underlings afterward, if the CEO has been in to visit. On the other hand, lobbyists tend to want to protect their CEOs from the rough and tumble of the fray as long as possible.

Many members of Congress seemed to naively believe that Google and Facebook were so all-powerful on the Internet that they could “fix anything” they really wanted to—if only they were willing. Of course even the most popular Internet sites do not control the underlying physical network infrastructure. Internet backbone networks and access providers do, but they are not supposed to be blocking or censoring anything either. That’s why a “follow the money and the perps” approach to cutting off operators of foreign websites dedicated to piracy is the only way to go. Witness MegaUpload and the irony that Kim Dotcom got arrested in New Zealand immediately after the legislation died.

Most members of Congress and staff were totally unaware that Google was already taking down thousands of items a day under existing copyright law—the
DMCA. Many on Capitol Hill were simply unfamiliar with the DMCA statute itself. At first the oft repeated line “we just disagree with you” was code for “we have the votes to defeat you, so we don’t really need to refute your arguments on all this technical nerdy stuff.’’

But after the December House Judiciary Committee markup, in which members admitted they didn’t understand the impact of SOPA on cyber security or the Internet, some staffers and members were more receptive to hearing details about the collateral damage related to the wording of the bill. A staffer in one office was noncommittal about his member’s support, but did comment that we were the only ones to bring a copy of SOPA to their meetings.

In another case, CCIA lobbyists happened to be in the office with a staffer telling us his boss had not taken a position, when the Member walked in, and asked what our meeting was about. When the staffer says SOPA, an intern pipes up, “we’ve been getting tons of calls about it. It hasn’t stopped.” The Member replied, “I’m voting against this bill.” It seemed his staff was blind-sided: he’d made the decision on the spot. Learning of his constituents’ concerns had pushed him over on the issue—further proof that meetings might have influenced the analysis, but the grassroots were undeniably important.

In lobbying against COICA, SOPA, and PIPA, the CCIA engaged in countless meetings and briefings in Congress to explain the collateral damage to the security of the Internet. We were fortunately able to utilize letters from dozens of top Internet architects, engineers and cyber security experts, which raised serious concerns about the bills. As a young industry, we were slowly but surely nurturing a bipartisan group of champions of our own. These efforts helped focus attention on the technical and business pitfalls of the legislation and chip away at the structure and support for it. However, legislative staff questions and concerns were too often brushed aside in favor of a political agenda driven by a few well-connected constituents and special interest groups. This of course led to the huge “generational mistake” that was the crash and burn of SOPA/PIPA.

The letters, documents and news reports by tech beat reporters did help build a record. Fortunately, when Internet users awoke to a blackout in January 2012, they were quickly able to find that record and see that some in the House Judiciary Committee were ready to regulate the Internet without hearing from Internet experts, consumers, or even a broad swath of technology and fair use industries. Internet users could learn with a few mouse clicks that this action was proceeding against the advice of law professors, Internet engineers, cyber security experts, and a growing number of Internet companies—and they called their representatives.

My colleagues at CCIA and others in the trenches were grateful to have these experts willing to voice their opposition, and heartened by the growing awareness by companies not usually focused on policy battles. We all also owe a huge debt to a handful of key enlightened members of Congress, who took courageous stands for Internet freedom, who worked to block SOPA and PIPA until the significance and danger of the legislation became more clear to a wider group of companies, Internet leaders, and concerned Internet users.

Our industry and our users are also indebted to the public interest groups from Demand Progress to TechFreedom who sounded the alarm, drew the attention of Internet users, and encouraged them to make their voices heard in Congress. Had activists not rallied the cavalry, rights holders with longtime Washington lobbyists might have rammed these sweeping changes to the Internet through Congress before they started their holiday break.

The January 18, 2012 website blackouts were the subject of a question on popular television quiz show “Jeopardy.”

Based on my 30 years of fighting battles on behalf of innovation and Internet freedom, I don’t believe we’ve seen the last of this kind of bill. Too few members of Congress adequately understand the Internet, and the difficulties of protecting its core principles, and there is too little real understanding of the size, scope, and complexities of the problems surrounding online infringement. The legislative and legal framework that has nurtured the growth of the Internet evolved over several decades, based on the hard work of the few. To preserve that framework will also now require the constant vigilance of the many.

We need to communicate consistently with Congress about the realities and benefits of a free and open Internet. We also need to explain the proactive ways in which Internet companies can act as responsible corporate citizens in the matter of intellectual property protection. But the entertainment industry must also look at what else it can do to adapt its business and profit models to fully exploit the opportunities presented by the global Internet without trampling on the rights and legitimate concerns of others.

We need to have a better understanding of the real costs to industries of both the problem and the different proposed responses. Congress will then be in a better position to tailor legislative responses. Any proposed solutions must weigh the real seriousness and the scope of the problem, while minimizing collateral damage to other dynamic industries and to the Internet as a tool for communications and democratic activities.

The battle to preserve Internet freedom will probably never end. Democracy works best when participation is active and informed, as the Internet blackout and Internet user protests have demonstrated. The Internet community has been empowered to protect its vital interests. But since the disruptive power of the Internet will constantly challenge the entrenched status quo and politics as usual, such entrenched vested interests will always fight back.

This time, those willing to sacrifice Internet integrity and freedom for their own financial gain did not win. We are encouraged to see how many Internet users and stakeholders recognized the importance of the Internet as an engine for innovation, economic growth, and political participation—and were willing to take action to defend it.