Stop Online Piracy Act

Thousands marched in the streets of Europe last weekend, with protests reported in Budapest, Paris, Prague, Vilnius, Transylvania and beyond. Bulgaria has pulled out of the process of signing ACTA, as the agreement is known. Latvia has called for greater consultation. Poland has suspended its involvement. And Germany is holding off, as are the Czech and Slovak governments.  Hollywood had expected a neat and tidy ending to the years-long negotiation of a new global copyright regime. What it has gotten is something as complex as a Fellini film.

How did we get here? In 2007, the United States, along with Japan, Switzerland, Canada, Australia, New Zealand, Singapore, Korea and the 27 EU member countries began, in near total secret, to work out a policy on piracy and bootlegging that would stand separate from existing international trade bodies. The hope was to synchronize enforcement against counterfeit goods, from knockoff Viagra to black-market electronics to faux Nike sneakers.

But as the world has gotten a peek at ACTA over the years, it’s how the agreement would govern the Internet that has gotten the most attention. The agreement has raised concerns that travelers will have their laptops and MP3 players searched at border crossings for illicit copies of movies or music, or that Internet service providers will be forced to crack down on customers suspected of using their bandwidth to trade files.

“I don’t know where it comes from and how it originated,” said Lithuania’s justice minister, “but I don’t like that this treaty was signed skillfully avoiding discussions in the European Union and Lithuania.”

In real part, where it has come from is Hollywood, as well as the movie industry’s baby brother, the U.S. recording industry. Over the years, those industries have pursued two tactics in their copyright crackdown, one local, one global. Domestically, the Motion Picture Association of America has pushed SOPA and its companion, the Protect IP Act. Globally, there is ACTA. That international agreement could get done on the world stage not only what MPAA has achieved in Washington, but some of what it hasn’t been able to push through in the United States

Both at home and abroad, critics have argued that Hollywood’s vision of an Internet — one where it is empowered to hunt down violators — cares far more about protecting copyright than it does about protecting the public’s ability to freely associate and communicate online. But as unsettling as that might sound to those of us in the United States, it can be downright terrifying in places where fears of totalitarianism and surveillance are fresh and real. Culture doesn’t always translate, on-screen or off. Secretive cross-border agreements hit the ear differently in Vilnius, or Berlin, or Warsaw. Add to that the fact that the Internet is seen as a refuge, a place where the people stand a chance of countering the shadowy ways of government, and the resistance to ACTA we’re seeing in Europe isn’t surprising.

ACTA’s negotiators, for their part, reject the way that the agreement has been framed. Existing trade agreements like the World Trade Organization’s TRIPS agreement pre-date the Internet, they point out. Karel De Gucht, the European Commissioner for Trade, insists that ACTA’s real target is “large-scale illegal activity, often pursued by criminal organizations.”

But, as with SOPA and PIPA, the issue here isn’t just the substance of the policy. It’s who was writing it, and how they were doing it. For a long while, the little that was known about the drafting process came through a WikiLeaks leak. In that vacuum of information, the focus turned to what looked for all the world like Hollywood’s hijacking of what may well be a necessary global conversation about counterfeit goods.

“Unfortunately for these guys,” wrote Public Knowledge’s Harold Feld, “whenever there is an international trade agreement negotiation, Hollywood jumps in, takes over, and starts driving the crazy train off a cliff by demanding all kinds of nonesense [sic] in the name of ‘stopping piracy.’”

If ACTA is SOPA and PIPA writ international (and it is, in spirit if not in enforcement mechanisms), then what is fascinating to notice here is how the catalyzed reaction against ACTA across Europe mirrored that inter-government agreement: It has been a networked response. Surely, there have been major players. The hacker collective Anonymous has played a role. So has the Pirate Party, a tech-minded political party that started in Sweden and has spread across Europe. But there are millions more individuals who have made themselves heard. Anti-ACTA sentiment has spread nearly virally across the continent.

The Internet is beginning to level the political playing field. The Motion Picture Association of America boasts offices in 30 countries around the globe. That has long been to its considerable advantage. But, as with SOPA and PIPA, Hollywood’s political arm is finding that the kids and not-so-young people rallying online and in the streets are proving to be, in the aggregate, at least, formidable foes.

And each of those rallies, each public demonstration — in Budapest or Prague or New York City – over a copyright bill makes it harder to believe Hollywood’s long-told tale: that the only ones who don’t want their copyright regime are hardcore digital pirates driven by a desire to get music and movies for free. It’s getting difficult to ignore the fact that this particular story might be a little more complicated than that. There’s more to the free flow of online information than piracy. That much this winter’s wired political protests have made plain.

On Friday morning, Reid settled the matter. “In light of recent events,” read a statement sent out by his office, “I have decided to postpone Tuesday’s vote on the PROTECT I.P. Act.”

The move by Reid to hit pause on the bill, known as PIPA, is a big deal — not least as an acknowledgment that online protest is shaping his agenda.

“To me, it was a day for the history books,” Sen. Ron Wyden said in an interview with Salon on Thursday night. “In terms of communicating with government, America is never going to be the same. This showed that you can literally have millions of people being able to weigh in directly with their legislators when they feel that they haven’t been listened to.”

Wyden has a unique perspective. It was the Oregon Democrat who was holding up the bill that the Senate was scheduled to vote on Tuesday of next week. Backers of PIPA needed 60 votes to advance a motion to proceed and break Wyden’s hold. As recently as Tuesday of this week, the bill’s supporters looked to be in a strong position.

Objections to the bills from the tech community had not swayed the bill’s sponsor, Sen. Patrick Leahy, chairman of the Judiciary Committee, or the majority leader.

“Leahy and Reid don’t care about statements and speeches,” said one Senate aide. “They care about pushing the levers of power. And the Internet stepped up and said, ‘That’s not how you pass legislation anymore.’”

The untold story here is that SOPA, the original target of the online community, had derailed PIPA, a bill with a longer pedigree and, according to online observers, a less aggressive approach. “PIPA is terrible,” says Electronic Frontier Foundation senior staff technologist Peter Eckersley. “SOPA is ghastly.”

After SOPA’s introduction in the House in October, Judiciary Committee Chairman Lamar Smith, Republican of Texas, put on a hearing that was ostensibly intended to give the bill a once-over. The proceedings were comically stacked with Google’s policy counsel, Katherine Oyama, serving less as a technical witness and more of a punching bag for complaints about the search engine giant. That a congressional hearing on a critical piece of legislation could be so vapid infuriated the tech community. In response, technologists rallied around American Censorship Day, and found a champion in Rep. Darrell Issa, chairman of the House Oversight Committee, who suggested an alternative bill. Republicans and Democrats alike condemned the superficial consideration of the bill.

The House meltdown sent PIPA’s backers on the Senate side scrambling to separate themselves from the mess. A two-page fact sheet circulated in the Senate making the case that the House’s bill “differs from the PROTECT IP Act” in several key ways.

• SOPA applies to sites that merely “facilitate infringement,” for example; PIPA targets those solely dedicated to breaking copyright.

• SOPA threatens to ensnare sub-domains in website takedowns; PIPA understands that one music blog hosted on Blogger.com does not implicate the whole site.

• SOPA might violate due process; PIPA requires that any efforts to take down advertising or payment systems of infringing sites be routed through the courts. And so on.

“Much of what has been claimed about the Senate’s Protect IP Act is flatly wrong,” Leahy declared on the eve of the blackouts, “and seems intended more to stoke fear and concern than to shed light or foster workable solutions.”

And if Leahy still felt confident of the bill’s passage at the time, it was probably justified. As of last week, PIPA had attracted 41 co-sponsors.

Wyden attributed that more to effective industry lobbying, than senatorial deliberation.

“It’s the content industry lobbyists who are best known in the Senate,” he said. “They’ve always had their way here. It picked up all these sponsors because the content industry worked so cleverly to tell everybody, ‘This is non-controversial. Nobody is in favor of piracy. This is practically a gimme.’ When people hear that, and that powerful industries are for it, often all the implications don’t get thought through. We heard from senators who said, ‘I had no idea that this would do this kind of damage to the Internet, to cybersecurity, and the like.’”

But if the online protests got all the attention this week, equally noteworthy was the reaction of people who had written the bill. They went back to the drawing board — behind closed doors.

The Motion Picture Association of America made little pretense about the fact that it was instrumental in writing the bill. The OpenCongress blog pointed to a New York Times story in which an MPAA executive declared, “We will come forward with language that will address some of the legitimate concerns” about the bill.

This week, MPAA Chairman Chris Dodd came out and talked about tweaking PIPA as doing “the hard work of legislating,” sounding much like the Democratic senator from Connecticut he until recently was. (Hollywood, for the record, made noises about dropping its traditional support for Democrats, perhaps not noticing that far more Republicans than Democrats withdrew their support from PIPA in the wake of the protests.)

PIPA’s proponents seemed to be misunderstanding the argument that its opponents were making. They don’t reject what’s in the bill. They reject the bill’s very existence. ”

“We’re fundamentally saying, kill PIPA, kill SOPA, nuke the bills,” said David Moore, executive director of the Participatory Politics Foundation and program manager of OpenCongress. “Then we’ll talk.”

Why is  PIPA so irredeemable? For one thing, say its critics, the congressional copyright crackdown assumes facts about digital piracy not yet in evidence. If online piracy is truly so massive a problem for the U.S. economy, doesn’t it require more methodical study in Congress, with input from a wider range of experts?

For another, they’re not willing to concede that the Senate Judiciary Committee, so diligently cultivated by the MPAA over the years, should be the be-all and end-all when it comes to conversations about fostering profitable digital content circa 2012. Or that law enforcement should be the go-to response framework.

Other committees might deserve a crack at developing legislation.

“How do we get our content industries to migrate to business models that get creators paid in the Internet era?” Eckersly asked. “You don’t need to fight a crazy global war against piracy to have a YouTube or an iTunes.”

This tectonic shift of the ground under PIPA has some people searching for ways to reframe the situation in the dynamics Washington knows so well. It’s Hollywood vs. Silicon Valley. It’s MPAA vs. Google. Dodd, for example, breezily explained the reported removal of domain name filtering from PIPA — one of the provisions that technology types found most egregious for its targeting of the Internet’s core infrastructure — as “something the Google crowd didn’t want to have done.”

Via Twitter, media mogul Rupert Murdoch, a PIPA backer, blamed ”Silicon Valley paymasters who threaten all software creators with piracy, plain thievery.”

The revealing assumption: Congress must be taking its marching orders from someone with a ton of money. But that’s revisionist. All signs indicate that Google was ready to accommodate itself to some form of  PIPA. The company’s blacking out of its logo this week was attention-getting, no doubt. But a close watching of how this has all played out over the last two months suggests that Google was jumping in front of a parade that was already well on its way.

“If it was Hollywood vs. the tech companies,” says Art Brodsky of the advocacy group Public Knowledge, “it would have been over a long time ago, because the tech lobby is terminally weak and disorganized.”

The truth is that the bulk of those objecting to the bill were millions of Americans who use Internet utilities such as Google and Wikipedia and Craigslist.

That said, PIPA is still alive. In his statement, Reid praised Leahy for the work that he’s done thus far on the bill.

“I encourage him to continue engaging with all stakeholders to forge a balance between protecting Americans’ intellectual property, and maintaining openness and innovation on the internet,” Reid wrote.

But it does look like PIPA won’t go ahead without fundamental rethinking. Is it naive to see the events this week as evidence that a networked populace might really have the ability to upgrade its country’s politics?

“Everybody retains their constitutional right to be foolish,” says Wyden. “But I hope so.”

With OPEN, though, Issa isn’t simply focusing on changing what’s in the bill. He’s interested in changing the process by which legislation gets made. When SOPA first started making news in October, it seemed like the legislation dropped from the sky. (More likely, it was dropped from the computer of an entertainment industry lobbyist.)

On OPEN, Issa’s strategy is to show his work. He picked up KeepTheWebOpen.com, a digital gathering point for the bill. In mid-November, after the House’s one and only hearing on SOPA, Issa and his team whipped together what they call “Madison” – a digital legislative platform that lets anyone suggest changes to the draft bill, a Wikipedia of sorts for legislative text. Here, leaving fingerprints is encouraged. All edits and comments are signed, first name, last initial.

And during the Judiciary Committee’s markup of the bill in late December, Keep the Web Open streamed the hearing feed and paired it with a Twitter stream of commentary from folks watching along at home. Issa’s office later reported that, on the first day of markup, there were some 138,000 instances of people watching the proceedings coming from the U.S. alone. “I want to keep the Web open,” says Issa in a video posted on the site, “because the prosperity brought by innovation has spread to the four corners of our planet.” He went on: “We need to be more open, not closed.”

As an open digital platform where anybody can participate, Issa’s site is a particularly appropriate place for opposition to SOPA. That’s because, in many ways, the battle over this bill is about exactly that: open digital platforms where anybody can participate. Think Twitter, Facebook, YouTube and the like. SOPA, say its critics, advances an unreasonable expectation of complicity by those sites for what people post upon them. And that, they say, is bad for the Internet.

That’s why the most passionate, and creative, protests against SOPA have come from the likes of, for example, the document-sharing hub Scribd, which disappeared files last month in dramatic push-back. Or the micro-blogging service Tumblr, whose millions of users recently found its dashboard mock-censored. Or Reddit, whose general manager caused a stir by commenting, on the site, that SOPA “would almost certainly mean the end” of that immensely popular social news platform.

But far more surprising is this: that OPEN, both bill and concept, finds itself meeting a Congress primed to accept it. Members of all stripes and seniorities are recoiling not just at what’s in SOPA, but by a process that has played out incredibly quickly, often in secret, and with little meaningful outside input. The last two months have been, for many, a demonstration of what’s wrong with bills from nowhere.

It’s all making for even stranger bedfellows than usual. Leading the opposition to SOPA in the House Judiciary Committee alongside Issa, who once ran an electronics company, has been Zoe Lofgren, a California Democrat. “We spent years” working on the hugely important Digital Millennium Copyright Act of the ‘90s, said Lofgren during the markup, and yet, “this is being jammed through in two months’ time.” Lofgren represents Silicon Valley, so she’s a given.

But other members are objecting to SOPA as well. Congress has held a single hearing on SOPA, in November, and there, only one witness, Google’s policy counsel, Katherine Oyama, raised doubts about the bill. “None of the six witnesses were able to address” the security implications of the bill, complained 17-term Wisconsin Republican Jim Sensenbrenner. “This bill is not ready for prime time,” he said. Jim Jordan of Ohio, an über-conservative, recommended Congress “take a little extra time” on the legislation.

Two second-term members, Colorado liberal Democrat Jared Polis and Utah conservative Republican Jason Chaffetz, tag-teamed during the markup, with Chaffetz contributing two of the days more memorable lines. “Basically, we are going to do surgery on the Internet,” he said, “and we haven’t had a doctor in the room to tell us how we’re going to change these organs. We are basically going to reconfigure the Internet and how it is going to work without bringing in the nerds.”

Issa is aiming to bring in the nerds, and everyone else.

Keep the Web Open is very much a work in progress. As a legislative collaboration tool, Madison is rudimentary. One possible path for development is to do something like the U.S. Patent Office does with its Peer-to-Patent project, which seeks to tap the wisdom of experts to narrow the universe of information overwhelmed patent reviewers need to contemplate. The goal wouldn’t be for say, me, to parse the nuances of the digital security implications of domain-name filtering. It’s to get people who know the field inside and out to do it, to point Congress toward what it should be considering.

And with its video feed, Keep the Web Open could explore something like the groundbreaking project of former Wonkette blogger Ana Marie Cox, liveblogging the 2009 California Supreme Court hearing on Proposition 8. Bored lawyers joined in to explain to laypeople what they were watching. Why did Judge X ask that question that way? To which case was attorney Y referring? Network engineers could do the same thing during a hearing on the OPEN Act.

Last month’s SOPA markup served as a reminder that openness is coming to Congress, even if glacially. The proceedings came to a screeching halt after Texas Democrat Sheila Jackson Lee discovered a Twitter post from fellow committee member and Iowa Republican Steven King that read, “We are debating the Stop Online Piracy Act and Sheila Jackson has so bored me that I’m killing time by surfing the Internet.” Lee, who called King’s tweeting “so offensive,” was eventually persuaded to strike her words from the record. No matter. The words were already everywhere on Twitter and elsewhere online.

No matter their persuasion, members of Congress don’t like to feel bullied. They hate to feel out of control. It’s one reason many of them have so resisted efforts to open up Congress. But some, at least, are coming to the realization that open-source legislation might be the alternative to having legislation foisted upon them by lobbyists. And that’s creating unusual allies. That Peer-to-Patent initiative that has so much in common with Issa’s Keep the Web Open was, for example, a project of Beth Noveck, the Obama White House’s point person on open government until recently. But the future has a way of doing that.