Figuring Out Who Your Friends Are On SOPA and PIPA Is Not That Simple

Sen. Sheldon Whitehouse of Rhode Island is a Democratic torch-bearer.  He is a stalwart progressive, a reliable vote for an economic agenda aimed at helping people.  But at the recent Netroots Nation, it was what he didn't talk about that was more important.

On Saturday night (June 9) in Providence in his home state, Whitehouse was literally a torch-bearer.  After the close of the Netroots Nation conference there, Whitehouse took part in an evening performance of Waterfire, a combination of performance art with pagan ritual that involves setting fire to wood set in baskets in the middle of the Providence River to the accompaniment of solemn music with attendants dressed in black riding in black boats.  The centerpiece of the event is Waterplace Park in downtown Providence, and it was there that the lead boat circled, with Whitehouse in the bow, holding aloft a flaming torch.

Whitehouse had spent considerable time at the conference this year, as he did a year ago, speaking from the big stage but also chatting with conference attendees and with reporters and bloggers, even showing up on a Sunday morning to greet Netroots attendees who did some community cleanup the day after the convention ended. 

The crowd, generally of the progressive mind-set, likes him, but are stumped when asked this:  Did you know that Senator Whitehouse, a member of the Judiciary Committee, supported the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (aka PIPA), the Senate copyright bill last year?

A sample of responses to that question:  "I didn't know that."  "Really?"  "I'm surprised."  It was, to be sure, the one topic he didn't bring up voluntarily in discussion in the middle of the crowd of people who more than likely helped to kill the copyright bills (PIPA and its evil House cousin, the Stop Online Piracy Act, aka SOPA.)

In an interview, Whitehouse was forthrightly unapologetic about taking a stand that flies in the face of the Netroots Nation crowd.   His priority is to protect American jobs and support American industry.  He said he is worried about the "audio techs and key grips" and others who can't sell their works if those works are pirated.  Whitehouse said his big worry are the "foreign criminals" who are selling U.S.-made products:  "I still have a problem of criminals in China or Estonia making millions from stolen goods."

Whitehouse said he recognizes now one of the flaws in PIPA -- the proposed requirement that search engines and Internet Service Providers direct Web users away from supposed "pirate" sites,   basically rewriting the Domain Name Service (DNS), the phone book of the Internet, an integral part of the Internet plumbing deleting the objectionable sites.  Whitehouse said the bill shouldn't have interfered with the fundamental operations of the Internet.

Fooling with the DNS system was the "third rail" of the debate, Whitehouse said.  He expected that flaw would be fixed on the Senate floor, had the bill come up for debate.  But, he said the House version of the bill, the Stop Online Piracy Act (SOPA) was "so bad" and the reaction from the public so intense that the Senate leadership chose not to bring the bill to the floor.  

That fierce reaction left "a big residue" in Congress, and led to SOPA becoming a verb among the legislative community.  To be SOPA'd is to be hit with an intense public reaction and Senators don't want to be hit with it again.

Whitehouse's solution is pretty much the standard in Washington.  He said that Google, Facebook and Wikipedia need to "work something out" with the music and art industries.

 Sen. Ben Cardin, a Maryland Democrat, also put in a lot of time at Netroots Nation, talking to conference-goers and meeting with Maryland residents. He was a co-sponsor of PIPA, but was one of the first to drop off last January when pressure against the bill was mounting. He said he was responding to concerns of Marylanders (a push from the Maryland Juice political blog also helped).

Cardin also told us, as did Whitehouse, that "something needs to be done" to curb the "piracy."  He didn't like the PIPA bill "as written."

So from the standpoint of Whitehouse and Cardin, mainstream Democrats, we are at a standoff.  Something has to be done, but we aren't sure what, and we don't want to call down the wrath of Internet activists again.  A standoff in this instance is good because the ghosts of SOPA and PIPA continue to haunt Capitol Hill.  Emissaries from Senate and the House are quietly going around Washington asking tech companies what it would take to "fix" the legislation next year.  The entertainment industries never give up. 

The world view from Whitehouse and Cardin contrasts sharply with those of two other legislators, Sen. Ron Wyden (D-OR) and Rep. Darrell Issa (R-CA), two of the heroes of the SOPA/PIPA fight who helped to scuttle the bills.  Wyden has the longer history in protecting an open Internet, but Issa stood up at a crucial time this winter against the SOPA bill.

The two spoke at the opening session of the Personal Democracy Forum (PDF) 2012 conference in New York on June 11.  They lauded the citizen activism that brought down the copyright enforcement bills, with Wyden heaping praise on the elimination of the "middlemen" -- the lobbyists, reporters, pollsters, etc.

Both legislators said they wanted an Internet/Digital Bill of Rights.  Issa said he wants a right to "free, uncensored Internet," an open unobstructed Internet."  He wanted to "get neutrality right," an admirable goal, although he doesn't support the Federal Communications Commission rules, saying the agency didn't have the authority to proceed.  (The matter is in court, and it's likely the FCC will lose.)

And yet, and yet, and yet.  There are enormous doses of unreality that invade the Whitehouse (as opposed to the White House) view of the world, as there are with the view of Issa and Wyden.

If Whitehouse thinks that the only problem with PIPA was that it tinkered with the internals of the Internet, he was sadly mistaken.  That was only one problem.  On a Netroots panel, Steven DeMaura of the conservative Americans for Job Security, said it was the ability of companies to bring their own law suits that energized his group.  There are many provisions to which conservatives, progressives, pro-Internet activists of all sorts, objected.

While Whitehouse and Cardin want to do "something" on piracy, it's not the sit-down with organizations and companies that will solve the issue.  Even if Wikipedia  or Reddit or Tumblr were admitted to the club, saying that a small group can work out the problem in isolation won't cut it.  A wider, public discussion should take place, starting with an honest assessment of the problem.  Whitehouse and Cardin still accept the supposed "harms" of piracy from the entertainment industry -- figures which no one else has been able to replicate or justify.

Neither mentioned anything about the entertainment industries trying harder to solve their problems by allowing more consumer access to content. Limiting access to movies or TV shows, or even making it impossible to see programs or movies online because of arbitrary release dates hurts the content business.  Making some content subject to data caps and other content exempt hurts consumers.

Failing to recognize research that contradicts the old, unproven saws (accepted by government without confirming evidence) about potential losses from piracy and loss of jobs.  While entertainment leaders are great talking about their studies "proving" losses from piracy, they ignore other research showing that downloaders also buy the most music and other content.

From the Wyden/Issa viewpoint, an Internet Bill of Rights is a fine idea.  Issa has proposed some language for one such Bill of Rights, which he said would cover SOPA and PIPA under the right to an "unobstructed Internet."  (Issa in the past has voted for bills to toughen copyright enforcement, including the Pro-IP Act that increased government seizure forfeiture authority, which is what the government uses to justify seizing Internet domains.)

Another Bill of Rights-like effort is on Reddit.  Others are starting to draft their own versions.  Public Knowledge has an Internet Blueprint.  These are all worthwhile endeavors.  Even if they remain as intangible principles, there is some public value in having them debated and accepted.  As Wyden said at PDF, such a document could be used as a benchmark against which legislation could be measured and he thought perhaps half of the Congress could support it given enough time.  That seems optimistic.

The question will be whether such a Bill of Rights to protect Internet users would prohibit the abuses proposed in PIPA and SOPA.  The conflict between those values will be a debate worth having, and it will be interesting to see where Congressional Netroots boosters come down when the conflict comes up again next year.  Then the Netroots will know who their real friends are.

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