Online piracy is a major threat to our economy, consumer safety, and our national security.  Currently, many foreign websites that profit from counterfeit goods and stolen content are beyond the reach of U.S. law.  So, how do we target these dangerous foreign websites while upholding free speech, promoting innovation, encouraging commerce and preserving American jobs? 

The Stop Online Piracy Act (H.R.3261) in the House and the PROTECT IP Act (S.968) in the Senate provide measured, needed tools to go after these websites that are beyond the reach of our current laws and preserve millions of American jobs.  Everyone engaged in legal commerce on the Internet should welcome new tools to go after websites that illegally profit from American innovation and creativity.  While we can never stop online piracy, this legislation is a step in the right direction. 

Yesterday, the New York Times published an editorial on this legislation.   It rightly stated that piracy is “the bane of the Internet.”  However, it failed to mention the importance of copyright laws in creating the Internet of today and the jobs that are at stake if we don’t target online piracy.  Unfortunately, it also misrepresented many important parts of the Stop Online Piracy Act. 

Copyright protection laws have helped create the Internet of today, alive with free speech, innovation and commerce.  Foreign rogue websites that profit from stolen content and counterfeit goods are a danger to consumers and a drag on our economy.  Copyright laws in the U.S. uphold free speech while encouraging innovation by giving an economic incentive for artists and investors to create new content and distribute it on the Internet.   

The editorial rightly stated that piracy saps our economy but failed to give the full picture of the millions of American jobs at stake.  The editorial said, “Piracy’s cost is measured in less innovation and less economic activity, as creators lose hope of making a living from their creations.”  The creators of new content are not the only ones who depend on copyrighted material for their livelihoods. More than 10.6 million Americans depend on the copyright industries for their jobs.  That’s about 1 in 10 private sector jobs in the U.S.  And about 2.2 million Americans depend on the film and television industries for their jobs.  Many of these Americans work behind the scenes in good paying middle class jobs.  

The protection of free speech on the Internet by U.S. law and the signal it sends to other countries, especially China, is very important.  The New York Times editorial stated that we should think about the signal we send to China.  There is no doubt about this.  Our copyright laws already send a strong signal to China and the Stop Online Piracy Act and the PROTECT IP Act uphold the tradition of protecting intellectual property while promoting free speech.  

Celebrated First Amendment attorney Floyd Abrams has written that the Stop Online Piracy Act upholds free speech.  In a recent letter, he wrote, “The notion that adopting legislation to combat the theft of intellectual property on the Internet threatens freedom of expression” is “insupportable.”  Secretary of State Hillary Clinton has also written that “The State Department is strongly committed to advancing both Internet freedom and the protection and enforcement of intellectual property rights on the Internet.  Indeed, these two priorities are consistent.” 

Preserving safe harbors for websites that remove copyrighted material is important to enable innovation and commerce.   The editorial raised concerns that the legislation will undermine the safe harbors for domestic websites under the Digital Millennium Copyright Act.  This missed a key distinction: Those safe harbor protections protect legitimate websites, not websites that are dedicated to theft and have no intention of complying with U.S. law.  The Stop Online Piracy Act upholds and has no impact on these safe harbors because it is directed at websites that are dedicated to the theft of copyrighted works and the sale of counterfeit goods – sites that are ineligible for the DMCA’s safe harbors to begin with.  Websites that are engaged in legal commerce will continue to have safe harbor protections.  Opponents of the Stop Online Piracy Act should be careful about this distinction or it would appear that they are arguing that blatantly infringing websites that have no intention of complying with U.S. law should enjoy safe harbor protections.

The Stop Online Piracy Act follows established due process standards and targets websites that are dedicated to counterfeiting and piracy.   The site blocking techniques provided for in the Stop Online Piracy Act are not new.  They are currently used to combat all kinds of harmful behavior including spam, phishing, malware, viruses, and other forms of Internet crime, all without claims of Internet censorship or harm to the Internet.  In fact, some of the same experts cited by the New York Times developed these techniques for use in fighting those kinds of Internet wrongs.  They apparently believe copyright infringement is not a problem that merits the same kind of enforcement efforts.   

Combating piracy is important for the future of free speech, innovation, and commerce on the Internet.  We should work together to create legislation that targets piracy that is currently out of the reach of our laws.  Congress and the courts have crafted reasonable, measured techniques to protect copyrights while preserving free speech.  The Stop Online Piracy Act and the PROTECT IP Act continue in this tradition and help ensure that the Internet will continue to be free and open while preserving millions of American jobs.

In the Sunday New York Times Book Review, Jeffrey Rosen, a law professor at George Washington University, reviewed “Free Ride” by Robert Levine.   Levine’s book illustrates the importance of copyright laws in promoting innovation and commerce on the Internet.   Rosen believes that it is an important book that “...should change the debate about the future of culture...”

Levine’s book explores how many parts of the culture industry have been economically devastated because they have invested creativity and capital in content that consumers want but often see their products being distributed for free on the Internet.  Levine writes, “The real conflict online is between the media companies that fund much of the entertainment we read, see and hear and the technology firms that want to distribute their content — legally or otherwise.”

Rosen shows how the current economic system of the Internet is broken:  “But the biggest problem with copyright today, he [Levine] says, is that its protections have become illusory in an age when movies and music, produced by independent artists and big studios alike, are available on pirate sites even before they’re released.”

One part of the culture industry that has undergone major economic upheaval due to the Internet is printed news.  Some of America’s most trusted newspapers laid off reporters who produced important original and investigative reporting.  However, currently some of the newspapers have started charging for access to their websites.   Rosen writes,

“The most successful culture businesses, Levine says, have resisted nostrums about how information yearns to be free and instead have insisted on the old-fashioned strategy of selling something for more than they paid for it. He notes that The Wall Street Journal, The Financial Times and The New York Times charge for content, and that some have found that the increased revenue of full-price subscribers more than offsets the decline in digital readership.”

In conclusion, Rosen believes that Levine has made a convincing argument about the problems content creators face on the Internet.  He states, “…regardless of your position in the business-of-culture wars, it’s hard to resist Levine’s conclusion that he status quo is much better for tech companies and distributors than for cultural creators and producers.  That status quo may benefit consumers in the short term.  But if it continues, Levine argues, the Internet will increasingly become an artistic wasteland dominated by amateurs – a world where music, TV and journalism are virtually free, and where all of us get what we pay for.”

Since its introduction a few weeks ago, SOPA opponents have flooded the blogosphere with mischaracterized and often incorrect depictions of what the bill will actually do if passed. The most common piece of misguided rhetoric and the rallying cry for many opponents is the culturally resonant label: censorship. But as New York Lawyer and Columbia University Law Professor Hillel I. Parness points out yesterday, the Stop Online Piracy Act does not provide the government the pretense or the tools to “censor” any website based on a content evaluation alone, as reported by ReadWrite Enterprise.

Parness describes SOPA as “clarifying the Copyright Act” and says the nature of the bill is nothing different than other pieces of legislation that have regulated internet usage in the past:

“I don't view the approach here as anything that is groundbreaking in the macro sense. We have seen statutes, we have gotten used to statutes addressing the Internet, and the uniqueness of the Internet, that allow for various remedies, such as notice and takedown under the DMCA, which was new when it was implemented.”

He continued, “Therefore, if there was a risk of abuse, that risk has always been there. And I have confidence in the structure of our court system, that the prosecutors and the courts are held to certain standards that should not allow a statute such as this to be manipulated in that way."

Parness also explains that any site targeted by the bill must meet existing U.S. classifications for criminal conduct. The key word there is criminal. Legislation that targets rogue websites, such as SOPA or its Senate companion the PROTECT IP Act, is intended to halt illegal behavior that takes money out of the pockets of Americans. The film and television industry supports 2.2 million jobs across the country and Chairman Smith with his 24 co-sponsors in the House, as well as Chairman Leahy and his 39 co-sponsors in the Senate aim to protect those jobs.

But these bills do not just protect job in television and film. They also protect consumers against counterfeit drugs sold on foreign rogue sites, a problem outlined by Pzifer Executive John Clark at the recent House Judiciary Hearing, and protect all Americans from phony equipment used by first responders, which is why the Fraternal Order of Police and the International Association of Fire Fighters have both endorsed the legislation.

Foreign-based rogue websites are a problem that isn’t going away, and on this Thanksgiving as we all reflect on what we have to be thankful for, we should give thanks we live in a country that protects us against real censorship and that won’t stand for online criminals using the internet to facilitate their crime.

Watch this video to see how rogue websites pose as legitimate operators to trick consumers:

Watch this video to see how rogue sites take advantage of internet users during a simple online search:

Remember the iPod?  It was a sleek, well designed portable music device that had so much potential.  Tragically, content protection law killed it off in the summer of 2005.

At least that’s what the Electronic Frontier Foundation (EFF) predicted in June 2004.  The EFF stated that the Induce Act could “potentially outlaw everything from CD burners to the iPod.”   That act did not pass, but after the Supreme Court implemented much of the Induce Act in a June 2005 decision, the opposite was true.  

In June 2005, the Supreme Court issued its decision in MGM v. Grokster, declaring that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”  This essentially implemented important parts of the Induce Act that EFF criticized a year earlier.

And here’s what happened: just last month, Apple reported that 16 billion iTunes songs have been downloaded and 300 million iPods have been sold.

This prediction is important when considering what critics of proposed content protection laws are saying now.  

Today, the House Judiciary is holding a hearing on important content protection and rogue sites legislation, the Stop Online Piracy Act (H.R.3261).    This bill and similar legislation in the Senate, the PROTECT IP Act (S.968), have bipartisan support and will preserve American jobs and target foreign websites that steal and profit from counterfeit goods and stolen creative content like books and movies and music.

Unfortunately, opponents of rogue sites legislation are continuing with their sky is falling rhetoric.  The EFF is currently warning that the Stop Online Piracy Act will squelch free speech and threaten the existence of many well-known websites such as Etsy, Flickr, and Vimeo, stating that “one very possible outcome [of the Stop Online Piracy Act]: many of the lawful sites you know and love will face new legal threats.”

The EFF was wrong about content protection law in 2004 and they’re wrong again now.

If rogue sites legislation passes, American jobs will be protected and the Internet will continue to be alive with innovation, commerce and free speech.  Content protection laws have given us the Internet of today and enabled the legal distribution of protected content like music or movies that are available on the iPod.  So just keep in mind the track record of critics of the Stop Online Piracy Act and the PROTECT IP Act.    

Watch this video to see how rogue websites make internet users vulnerable to identity theft:

There has been lot of discussion recently about important rogue sites legislation in Congress.   In particular, there has been debate about how this legislation would change current copyright law, especially the Digital Millennium Copyright Act (DMCA).  

An important part of the DMCA gives legally operating websites safe harbor when they remove material that infringes on copyrights after receiving notification.   Rogue sites legislation does nothing to legally operating websites.  It continues to give safe harbor to legally operating sites under the DMCA.   Rogue sites legislation targets foreign sites that are trafficking in stolen and counterfeit goods and content. 

On Wednesday, the House Judiciary Committee will hold a hearing on rogue sites legislation, the Stop Online Piracy Act (H.R. 3261).  This bill and similar legislation in the Senate, the PROTECT IP Act (S.968), will preserve American jobs and target foreign websites that steal and profit from counterfeit goods and stolen creative content like books, movies and music.  Both bills have bipartisan support and are backed by a broad coalition of business and labor groups. 

Today, a group of companies—AOL, eBay, Facebook, Google, LinkedIn, Mozilla, Twitter, Yahoo and Zynga—released a letter opposing rogue sites legislation that specifically cited the DMCA safe harbor provisions:

“We are very concerned that the bills as written [H.R.3261 and S.968] would seriously undermine the effective mechanism Congress enacted in the Digital Millennium Copyright Act (DMCA) to provide a safe harbor for Internet companies that act in good faith to remove infringing content from their sites.”

And on Monday, Markham Erickson, Executive Director of Net Coalition, wrote in The Hill’s Congress Blog on rogue sites legislation and the DMCA, stating, 

“Both bills gut the Digital Millennium Copyright Act (DMCA), which for over a decade has helped Internet companies grow and flourish.  The DMCA is one of the big reasons companies like Facebook, YouTube, and Twitter weren’t crushed in their early days by harassing lawsuits.”

The DMCA and other copyright laws have given us the Internet of today, alive with innovation, commerce and free speech.  But rogue sites legislation does not undermine or “gut” the DMCA.  Again, rogue sites legislation does nothing to change the DMCA’s safe harbor provisions, which will continue as law if rogue sites legislation is passed. 

Rogue sites legislation targets foreign rogue sites.   It goes after sites that are dedicated to pirating copyrighted works and peddling counterfeit goods.   Legally operating sites will continue to have the same protections they have under DMCA.

What is missing from this debate is how the DMCA is ineffective in targeting foreign sites dedicated to selling pirated content and counterfeit goods.  The DMCA is often effective in removing copyrighted material from legitimate websites but it is not effective in targeting foreign rogue sites that are designed to sell pirated content. 

The DMCA can be an effective tool in notifying website operators of copyright infringing materials made available through their websites.  Compliance, of course, varies.  The DMCA is most helpful to copyright holders only in cases in which the website is not primarily designed or dedicated to infringing activity.  Legitimate websites with low levels of copyright infringement can be managed through DMCA notices and adherence to a reasonable DMCA policy. 
 
However, rogue websites that are designed to allow users to easily and reliably locate copyright infringing material commonly ignore DMCA requests or only comply after long periods of time after illegal files are repeatedly viewed.  The DMCA also does not fare well in addressing the large scale rogue websites that host millions of files and receive hundreds of thousands of uploads daily.  Copyright holders simply cannot locate all the illegal files uploaded to these websites despite costly and time consuming efforts to scan the Internet for these files.  The illegal files that are reported using the DMCA are commonly re-uploaded to the same websites within minutes and without restriction.  Many large scale rogue sites even furnish illegal uploaders with notice that files have been taken down or tools to check whether their files have been taken down so that the same files can be re-uploaded.  This creates a situation where a website can act on DMCA notices, but still enjoy high levels of copyright infringement and the resulting profit from this Internet traffic.

So, rogue sites legislation creates new tools to go after these foreign rogues sites dedicated to criminal activity, which the DMCA has had limited success in targeting.  Rogue sites legislation targets foreign online criminals and their access to the U.S. market.  Operators of legitimate websites should welcome this legislation.