Wyden, Issa, CEA prepare for critical battles against SOPA and PIPA

In a press conference at CES in Las Vegas, Rep. Darrell Issa (R-CA) and Senator Ron Wyden (D-OR) stood jointly with Consumer Electronics Association President and CEO Gary Shapiro to voice their opposition to the Stop Online Privacy Act and Protect IP Act. The two legislators—who Issa acknowledged are "not predictable partners"—also participated in a series of panels at CES in an attempt to build support from the technology community in their campaign to adopt an alternative scheme for countering piracy. "There are no amendments that would make these bills acceptable," Issa explained. 

The CEA has joined the Computer and Communications Industry Association and others as part of Protect Innovation, a coalition pushing to stop passage of SOPA and PIPA. "The content providers have had a free reign" in pushing forward increasingly draconian copyright protection, Shapiro said. "Now it's going to stop, because they're messing with the Internet."

Issa, who is chairman of the House Committee on Oversight and Government Reform, will hold hearings starting on January 18th to present what he called "more balanced testimony" about the impact of the two pieces of legislation, and on January 17th will introduce an alternative piece of legislation—called the Online Protection and Enforcement of Digital Trade Act, or OPEN. Wyden is sponsoring OPEN in the Senate, organizing opposition to PIPA, and planning a filibuster if necessary when the Senate returns to Washington later in the month.

"Ever since I put a hold on the version of this legislation that was introduced in the last Congress [the Combatting Online Infringement and Counterfeits Act]," Wyman said, "our side has been fighting above our weight." But he added that "there's tremendous support building on our side." 

Wyden, Issa, and Shapiro all agreed with the fundamental idea behind SOPA and PIPA—to stop the flow of money to foreign websites trafficking in pirated videos, music, software and other intellectual property. But OPEN and the other bills take two fundamentally different philosophical approaches to the problem, Wyden said. "The difference between the two approaches is that we do not believe you should go out and do all this damage to the Internet. We have a simple remedy—cut off the money."

Like SOPA and PIPA, OPEN is aimed at cutting off the flow of money to foreign Internet sites trafficking in pirated software, videos, and other copyrighted material. The proposed legislation would make copyright and trademark enforcement an issue for the US International Trade Commission rather than the federal court system.

Using the best tool for the job

Because of his experience in the consumer electronics industry, "I was familiar with what it did," Issa explained. "If [Rep.] Lamar Smith and [Rep. John] Conyers"—the architects of SOPA in the House Judiciary Committee—"had come up with the idea of a specialty court... if they had reinvented the ITC—I wouldn't have had to do this." Issa described the ITC as a "low-cost, highly reliable, and predictable court where you get judges who know IP," as opposed to federal judges who generally handle fewer of them, and are more likely to have decisions overturned on appeal.  "The ITC has been the place you go to [for intellectual property infringement] since Taft's Tariff Act," Issa said.

And the ITC costs less for IP owners, he said, because even if they can't afford an attorney, they can take their own case to the ITC "and get justice without an attorney. Russian oligarchs running websites off former military bases aren't going to contest a copyright—the foreign infringer will almost always default." And the ITC has an inherently better set of relationships internationally to go after infringers overseas, he said.  The ITC would also provide a single set of people with expertise in IP, providing continuity in the prosecution of infringement. Under OPEN, Issa contended, the ITC would be able to shut down the flow of money to infringers within 90 days—and with repeat infringements, within days or hours. "We're not claiming the ITC is perfectly prepared" to take on Internet piracy, Issa explained.  But he and Wyden believe that the ITC is much more capable of handling the task than the Justice Department and federal courts, considering some of the overreaching that ICE has done in enforcing copyright laws.

Wyden said that OPEN also places a much narrower definition on who the law can be applied to—specifically foreign infringing websites that "primarily and willfully engage in infringement." OPEN wouldn't change the current standards for copyright, and would be an "accompaniment to DMCA" rather than setting it aside. "We're protecting fair use," Wyden said. "We're not dismantling [the] DMCA." SOPA, on the other hand, sets aside much of DMCA and puts a new copyright standard in place that could have far-reaching ramifications.

That sort of big change isn't required, Issa said, because a narrower approach would be enough to immediately go after the biggest sources of piracy. "Twenty sites represent most of the infringement," Issa said. "Were talking about something that could shut off 80 percent of infringement quickly."

While SOPA and PIPA proponents have argued that the ITC would be more expensive than their plans, SOPA "scores as a very expensive bill," Wyden said. Smith and Conyers "have made the assumption that there would be only a few cases" prosecuted under SOPA, while the numbers used to oppose OPEN are based on thousands of cases being filed.

But SOPA's costs are hard to really pin down, Wyden said, "because it's hard to score a lawyers' full employment program." And the economic costs of SOPA would be potentially huge because of the negative effect on small businesses, he said. "The 'Net is the great equalizer for small business, and these people are going to be hurt" by SOPA's changes to the Internet's structure. As we deal with this economy, why would you do all this damage to the job engine?"

 Venture capitalists are among the witnesses being called to Issa's hearings next week, to discuss the impact on creativity that SOPA would have. "That creativity will still happen, but not in America," Issa said.

A tin ear

At a minimum, Issa and Wyden are hoping to put the brakes on the momentum to get SOPA and PIPA passed. "The whole strategy has been to get these bills into conference, because then you would have these two bills with the same principles—which is why the first week back in the Senate is so important, to educate senators and get people to communicate with them through email, phone calls, and the like."

When asked if the SOPA drafters had been out of touch with the impact of SOPA, or had a "tin ear" to the issues raised by the tech community, Issa said that was "probably a fair assessment. Lamar and Conyers are not techies." Other than dealing with patent reform, the House Judiciary Committee doesn't have a lot of oversight over technology. And the way that SOPA was drafted, Issa said, it kept all of the measures within the scope of Judiciary's oversight. "How could that be referred to only one committee?" he asked.

Shapiro was sharper in his assessment of Conyers and Smith. "They did it because they could," he said. "It was done from the perspective of the content community alone." Because of the nature of the committee's oversight, media companies have been especially attentive to its members, Shapiro said, and as a result, "Judiciary is very sensitive to the content community." While SOPA came from good intentions, "good intentions do not always make good laws."

Shapiro noted that a good portion of the media industry's revenue—"the honest legitimate delivery of content"—is based on having a stable Internet. He noted that the late president of the Motion Picture Association of America, Jack Valenti, who "once said that VCRs were to the movie industry what the Boston Strangler was to women home alone," toward the end of his life became a believer in digital distribution. And SOPA threatens that cash cow.

Wyden's moves to delay a PIPA vote have already had the effect of allowing people to take a look at what is in the bill. Issa said that the national security community has looked at what SOPA and PIPA would do to their plans revolving around DNS-SEC, so they are voicing opposition to them. And the momentum in the Senate to pass PIPA looks to at least be slowing. "We're not underestimating how tough a fight this is," Wyden said. "But we don't find a lot of new co-sponsors going on the bill." Senator Jerry Moran (R-KS) was a supporter of PIPA, he said, and has since dropped his support and come over as the principal Republican co-sponsor of OPEN in the Senate. "And a lot of senators are looking for an approach that doesn't do as much damage."

"Time is on our side," Shapiro said, noting that organizations on the left and right—"the Tea Party and MoveOn.org"—have voiced opposition to SOPA and PIPA, and that large business associations such as the Business Software Alliance have pulled their support. And primary opponents of congressmen and senators up for re-election are raising the bills as a major issue, Shapiro said.

Listing image by Photograph by Sean Gallagher