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Google and its allies whipped up yesterday's protests with misleading attack on anti-piracy bill

Posted by Alan Wirzbicki  January 19, 2012 05:25 PM

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The protest against a proposed anti-piracy law that blossomed across the Internet yesterday may have been effective. But it was also deeply misleading.

Several popular websites, including Google, Wikipedia, Reddit, Boing Boing, and Wired, participated in the day of protest, either taking down their own pages, or providing front-page links urging users to contact their congressmen to lodge a complaint. Egged on by the protests, 7 million people signed Google’s petition.

The targets of their ire were two proposed pieces of anti-piracy legislation pending in Congress. In the short term, the protests were successful. Since the blackout, nineteen senators have come out in opposition, including seven of the original sponsors. These new opponents, a majority of whom are Republicans, have released statements saying that the legislation is a rushed attempt to regulate the internet that could have dire unintended consequences.

Somewhere out there, Democratic congressmen must be scratching their heads and wondering how the netroots left, ostensibly a constituency of liberals, was enlisted into the lobbying campaign of a multibillion-dollar corporation like Google, which stands to lose money if the legislation passes. The opponents of the bills are giving political cover to self-interested internet companies and to obstructionist Republicans by misconstruing a limited measure to rein in online piracy as an underhanded attempt to censor the internet itself. The truth is that the anti-piracy legislation is hardly the boogieman it has been trumped up to be.

Under the proposed legislation, the Department of Justice, as well as holders of copyrights on movies, TV shows, music, and other works, would have the power to go to court and make a case to a judge that a website is primarily designed or operated for the purpose of offering goods or services in a manner that engages in, enables, or facilitates the violation of US copyright law. If this case is successful, a court order would be issued demanding that search engines de-list the offending website, and that advertising networks and payment networks cease business with the website.

For those who do not disagree with the idea of copyright in and of itself, this ability to go to court, make a case to a judge, and, if successful, initiate a limited sanction on the copyright offender, is not particularly controversial. What has made the legislation controversial is a serious, and perhaps deliberate misreading of the bill’s language casting it as a backdoor route to internet censorship.

For example: CNN.com would never be deemed a site “primarily designed” to violate U.S. copyright. Even if the Motion Picture Association of America sent its finest team of lawyers to make the case that Ted Turner built CNN so that he could sell knock-off Gucci handbags (a misrepresentation that would, under the proposed legislation, leave the MPAA open to a counter-suit) no part of our judicial system would ever take them seriously. And yet, opponents claim that, should the bill become law, CNN and other sites might find themselves in the cross-hairs merely because some web troll put a link to a site selling pirated handbags in an article’s comments section.

By ignoring the words, “primarily designed,” the bill’s opponents have set up a straw man. They engage in hyperbole, pretending that Google, Paypal, and a host of other well known web services could be axed as enterprises primarily designed to enable criminal activity. And after convincing themselves that the legislation’s true aim is to obtain the power to take down any and all websites on a whim, opponents are compelled to invent some motive for the government to seek such power — the half-baked idea they settled on was that the government must be trying to censor the internet for its own nefarious ends.

Like most legislation, the House’s Stop Online Piracy Act and its Senate counterpart, Protect Internet Protocol Act, were imperfect in their initial form. In particular, when the House bill first appeared on Capitol Hill, it included provisions to block U.S. access to foreign pirate sites using the internet’s Domain Name System, which matches the names typed into web browsers with actual websites. DNS blocking would have prevented users in the US from accessing sites with pirated material — and it would have been a poor idea. Offending sites could easily circumvent the ban by registering domain names in foreign countries. And once they have, users in the US who use foreign servers to reach those sites would in turn become more vulnerable to malicious attack. Wisely, that measure has been dropped.

But small flaws in the first draft of the legislation hardly warranted the demagoguery that followed. And ultimately, outside of convincing legislators to add a section to the bill carefully explaining how courts are to interpret the words “primarily designed,” what will the January 18th protest accomplish? At the core of the debate is a clash between the creators of intellectual property — movie studios, record labels, etc. — and the Silicon Valley types who glean some small amount of money by providing services to sites that pirate those works. The revenue that Google could lose from no longer being able to sell advertisements on pirate sites, and the extra cost of compliance it might have to shoulder under stricter rules, surely pales in comparison to the revenue that copyright holders lose from the theft of their work. With so much more at stake, the entertainment industry isn’t going to drop the cause, whatever setbacks it may have been dealt yesterday.

The popular outrage at the supposed attempt to censor the internet might continue amongst the misinformed. But the big names in information technology that initiated the protest — the Googles of the world — know it’s about dollars and cents. If the anti-piracy bills backed by entertainment companies don’t pass this year, they’ll be back.

Keith Yost is a graduate student in technology policy at MIT and opinion columnist for MIT's The Tech.

Globe file: Google's search page yesterday, with its logo blacked out as part of a protest against two anti-piracy bills.

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ABOUT THE ANGLE Online commentary and news analysis from the Boston Globe. The Angle is produced by Rob Anderson and Alan Wirzbicki. You can follow Rob on Twitter at @rcand.

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