Steven Cherry: Hi, this is Steven Cherry for IEEE Spectrum’s “Techwise Conversations.” This is show number 74.
Copyright law is back in the news. Back in May, the U.S. Senate’s Judiciary Committee approved a bill that would give the Department of Justice sweeping powers to go after not just alleged copyright infringers on the Internet but the infrastructure of the Internet itself. The government would be able to get court orders that would force search engines and other Internet service providers to shut down websites or disconnect them from the Internet even before the infringement was proved.
The bill was pushed by businesses that make their living from copyrighted material, such as movie studios, and opposed by businesses who make their living on the Internet, such as Google, whose chairman, Eric Schmidt, has argued that such a law would give the government a deadly weapon with which to shut down any website it wants, just by calling it a haven for copyright pirates. At the time, defenders of the bill acknowledged it might be too broad but said it would get tightened up when the House of Representatives took it up. Last week, that idea backfired in a big way: The House took up a companion bill, called the Stop Online Piracy Act, or SOPA, that is even looser than the Senate version.
The legislation is supported by a wide coalition of interests that stretches as far afield as the Teamsters Union, which thinks it would protect American jobs. The opposition is being led by Silicon Valley’s congresswoman, Zoe Lofgren, who has gone on record as saying that the bill, if made into law, “would mean the end of the Internet as we know it.”
My guest today is Democratic congresswoman Lofgren. She’s represented California’s 16th district since 1994, a rather remarkable year to have gotten elected in. In fact, she was the only freshman Democrat elected in about a thousand-mile radius. She’s a lawyer by training and a bit of a geek by disposition. The website .NXT has said she “actually understands how the Internet works.”
Congresswoman Lofgren, welcome to the show.
Zoe Lofgren: Well, thank you very much. Glad to be on, and glad to see that engineers are paying some attention to this issue, because it is important. I think when we get into this—before we discuss the details and defects in both House and Senate bills to stop piracy—it’s important to acknowledge that there is a problem in my judgment in terms of pirated movies and music downloads and counterfeit goods. There does need to be a remedy, but these bills are incredibly broad; they would create a sweeping new regulatory scheme for the Internet, and it’s not the way to deal with that legitimate problem.
Steven Cherry: Fair enough. So how would the Stop Online Piracy Act end the Internet as we know it?
Zoe Lofgren: Well, it’s a complicated bill, but let me just go through some of the highlights. First, the bill in the House would give the government new enforcement powers to go after websites “dedicated to copyright and trademark infringement.” Now that power boldly may not be a bad thing: We agree that there are some websites out there that are criminal enterprises, for example, some selling counterfeit medications and the like, but this bill takes the power to a huge extreme to enforce. It creates an unprecedented Internet filtering scheme for the United States. Under the bill, as you said in the intro, the government can sue any foreign website, and if the government approves that it’s dedicated to infringing activities, it can order Internet service providers to take any number of steps to block users from reaching the website. They can order ISPs and anyone else who operates a domain-name server to block the website’s domain name. That, you know, has several problems with it. The domain-name blocking system mandated by the bill won’t work; I mean, under the bill when you ban the website you can still type the IP address into your browser bar and get there, so all of the threats is really any child could circumvent it. On the other hand, domain-name servers that are in the U.S. could easily move outside the U.S., so this is not even going to work. We’ve been contacted, and I’m not an engineer; I’ve grown up in Silicon Valley and I’ve used technology all my life, but the engineers and cybersecurity experts have told us that the domain-name filtering system that the bill would create would cause several serious technical problems.
One key assumption of the Internet is that the domain name—each domain name has one true legitimate destination across the whole Web. This universality is very important; in fact, the undercutting of that is being countered by the DNS [Domain Name System] security extensions—authentication technology that is part of the new federal strategy for cybersecurity. Blocking DNS sites would encourage users to use alternative unregulated DNS servers, which are more likely to be compromised in the first place, and the filtering scheme really sets a terrible precedent for the Internet: For the first time, the U.S. government would be ordering ISPs to enforce a blacklist of banned websites. This is the kind of censorship already in place in places like China and Iran, and replicating those practices I really think undercuts our legitimacy in standing up for Internet freedom. I mean, how can the State Department tell China to stop filtering Internet traffic when we’re going to do the same thing? I think also the new private enforcement powers in the bill will really upend the understanding created in the Digital Millennium Copyright Act, as you know, and I was in the Congress when we wrote that. The whole theory, I mean in a nutshell, is that the ISPs—the pipes, for lack of a better word, the platforms—are not required to monitor or take responsibility for the content of others until they are notified of an infringement, and then they have an obligation to take down infringing material—the so-called Notice-and-Takedown effort. That would be undercut in this bill because any copyright or trademark holder, even one whose work is not being infringed, could file a complaint against a website for being “dedicated to theft of U.S. property,” which is undefined. With this notice, payment to advertising providers would be cut off, and you’d have five days to respond, leading to litigation. Now, a website in addition to be alleged to be infringing could also be cut off for enabling or facilitating copyright infringement and cut off for “failing to confirm a high private probability of copyright infringement.” Really, it appears that it would be an obligation to assure oneself that there is not infringing material on a given site. Well, let’s take YouTube as a site, just for an example. YouTube users upload 48 hours of video every minute. There’s not a way in the world YouTube can ascertain as users upload material whether or not there’s material that’s infringing or criminal even. Now, they have an obligation when they’re noticed to take material down, and so far as I know they do so, but it’s not possible to really censor user-generated content prospectively, which is really what this scheme envisions. Further, it seems that this obligation would not just be platforms such as YouTube but a search engine, to place an obligation to search engines to really censor the Web to make sure that there’s no infringing material that could be reached. I think the reach of this could go into social media sites like Facebook or photo sites like Flickr, cloud computing or cloud storage sites like Dropbox, or other blogging sites. I mean, it’s really very broad in concept. I think it will lead to a ton of litigation; it will lead to an inability really to start new Internet businesses. We received a communication from a whole host of venture capitalists saying, how could you invest in something like this with this kind of uncertainty? So you know, if Facebook had to scan for infringing content before it started up, it wouldn’t exist today. And I think we need a remedy, but this is not really the remedy that we need. You can’t hold innocent websites liable for the content of their users.
Steven Cherry: You mentioned the Digital Millennium Copyright Act, which became a law in 1998. You know that too started out as a much, much broader bill and eventually got narrowed down. So on the one hand it did get narrowed down—that’s pretty good; on the other hand, some critics say it still unduly limits our freedom of speech and…
Zoe Lofgren: Well, I think Section 1201 is a problem in terms of control of technology, but as things have developed, that section, although overbroad and potentially a threat to tech innovation, has not really been experienced in the worst possible way. I’ll say this in terms of the SOPA act: I think we need to start over to try and fix this. I’m thinking ahead to—I mean, we’ve got the chairman of the committee, Congressman Lamar Smith, and the senior democrat on the committee, John Conyers—I don’t think they’re going to be amenable from my past experience with both of them, which goes back more than a decade and a half, to the kinds of amendments that would be necessary. I mean, we would just have to strike big sections and replace it, and I think we’re going to have to start over. Really, what we need to do is follow the money. If you take a look, whatever you think about Wikileaks, there was an effort to block access to their sites, which completely failed. Wikileaks was shut down because access to money was shut off. That’s true of the online poker enforcement; I mean, you shut down the sites, they spring up again. The enforcement action actually worked when you couldn’t process credit cards and PayPal and the like for that site, which violated U.S. law. And so if you want to get serious about outrageous piracy, you’ve got to take a look at following the money. I do think that efforts that Hollywood has made to try and regulate technology is a disaster. I mean, think back—and I love Jack Valenti; he was a wonderful man, served in World War II, served in the Lyndon Johnson White House, was a wonderful man—I remember when he said that the VCR would destroy Hollywood. I mean, their track record on understanding technology is not a good one, and this is an example of more of that.
Steven Cherry: Stepping back for a minute—just sort of looking at copyright law as broadly as possible—Corey Doctorow is a blogger, a science fiction author, and a social activist of sorts; he had an essay last week where he said that we’re pretty well into a transition into a world where books and movies and music and magazines and newspapers are sold and viewed and watched and read on the Internet. So copyright policy is really just Internet policy, he said, and because everything we do today has an online component; there’s just no such thing even as Internet policy, there’s just policy. So I think his point is that when copyright law is dictating the conditions of all our social, religious, and political speech, now maybe the tail is now officially wagging the dog?
Zoe Lofgren: Well, I think there is some truth to that. The whole copyright scheme was set up in a very different era, and one of the things—for example, look at music. If you want to get rights to music, you can’t just get, you know, go to one place. I mean, there’s the songwriter’s rights, and the performance rights, and on and on. I mean, it’s very complicated and in many cases can’t be done. You take a look at books: One of the big disputes in terms of the orphan works was that who owns the digital rights? The rights digitally have been segmented from the rights in paper. So the scheme really needs modernization. We won’t get it, I don’t think, anytime soon, because the copyright office is immersed in the past, and copyright holders are struggling to try and figure out how can they earn a living doing what they do, and that is a legitimate inquiry. I mean, the whole point of copyright law in the Constitution is to give an exclusive right to authors and inventors for a limited time to incent their production of ideas and literature and other art and the like. How we’re going to accomplish that in a digital world has not yet been established, but I think that one of the things that you do know is that you can’t lock down control effectively, and when you try and do that you can end up with collateral damage, which is destruction of innovation in the U.S.
Steven Cherry: So is copyright just the wrong way in a digital age to “promote the progress of science and useful arts by securing for limited times to authors the exclusive rights to their respective works and discoveries”?
Zoe Lofgren: Well, it’s all we have right now. I do think that there has to be a system in place that allows for the compensation of creators, and that’s true whether you’re inventing the iPad or whether you’re the author of a book. The current system in terms of copyright—I mean the patent system has its own set of problems, but the copyright system is not as agile as the new delivery systems, let’s just put it that way. This bill—it’s an embrace of the past; it really isn’t an effort to figure out how do we get compensation fairly to creators.
Steven Cherry: Well, Congresswoman, I wish you and the rest of Congress luck in figuring that out. And it’s just two days after Election Day, and there are a few other things to save besides the freedom of speech for you—unions come to mind, and health clinics for women—so thank you very much.
Zoe Lofgren: Well, that was an interesting election; I mean, the effort to destroy unions in Ohio failed, and the effort to oppress women in Mississippi also failed, so there’s a few things to celebrate.
Steven Cherry: Very good. And maybe we can celebrate a victory over copyright problems.
Zoe Lofgren: I hope so. I hope so.
Steven Cherry: Very good. Thanks so much for giving us your time today.
Zoe Lofgren: You bet. Take care.
Steven Cherry: We’ve been speaking with Congresswoman Zoe Lofgren of California’s 16th district, about the consequences for free speech and the Internet of the Stop Online Piracy Act. For IEEE Spectrum’s “Techwise Conversations,” I’m Steven Cherry.
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This interview was recorded 10 November 2011.
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