UPDATE: Copyright Filtering in Stimulus Bill

After our Action Alert this morning, we are still on red alert at PK. Thank you for your efforts to fax to and call Congress. It looks like the proposed amendment did not slip into the stimulus bill but the bill now goes to the closed-door conference process. Here's an attempt to get you up to speed.

Substantive Arguments on Copyright Filtering

We've been talking about the topic for some time now, but some of you may not be up on the subject. The idea is that ISPs, using deep packet inspection, would match the files sent in the traffic of Internet users to a database of known movies and music (provided by Hollywood studios and the record labels). Files that matched would be blocked or otherwise prevented from flowing to their destination, as the sending of those files are presumed to be illicit by the ISP and the parter content industries. Those subscribers "caught" in the filter may risk being disconnected from the Internet by their ISP -- a proposal better known as "three strikes" where subscribers can get booted from their Internet connection for being accused (not found guilty) of copyright infringement.

Copyright filtering has nothing to do with the reasonable network management allowed by net neutrality, though some would like to conflate the two. Net neutrality, at least from our point of view, ignores the content, source, and destination of the information being sent on the Internet. Copyright filtering specifically looks at the packets and lets someone determine what data goes through to its destination.

Filtering triggers both copyright and privacy problems:

  1. Copyright infringement can’t be determined just by seeing what files are flowing over the network. There are fair and legal uses for copyrighted works even without permission of the owner.

  2. It would require Internet companies to examine every bit of information everyone puts on the Web in order to find those allegedly infringing works, without a hint of probable cause. That would be a massive invasion of privacy, done at the request of one industry, violating the rights of everyone who is online.

Procedural Arguments on the Copyright Filtering Amendment

However now the Senate bill will be conferenced with the House bill so the differences between the two can be worked out.

The problem is that this is pretty much a closed-door process. Yes, House rules require one conference meeting to be open to the public, but the rules don't require that anything of substance happens in that one open meeting. The rest of the conference meetings can be and usually are closed. Those in the room -- members of the House and Senate picked by leadership and for their pertinence to the passed legislation -- are able to introduce new provisions to the bill. That's right, conferees could change provisions of a bill that has already passed, if there are no objections (and there are procedures for what happens when a Representative or Senator objects).

But what do we do if those in the room agree on new provisions in the bill, even if no one else has seen these changes that may never have been debated as part of the passed legislation? Conference reports -- essentially the list of changes that the conference committee agreed to -- are privileged, go straight to the floor for a vote, and are not open to amendment. The House or Senate could vote down the changes and throw things back into a conference, but then we're back to a closed conference committee process.

So, where are we now? For the stimulus bill, we now know that the Senate conferees are Senators Inouye, Baucus, Reid, Cochran, and Grassley. The House Conferees are Representatives Obey, Rangel, Waxman, Jerry Lewis, and Camp. Reports are that conferees are set to meet today and Senate Majority Leader Reid has said that most of the conference work on the bill could be completed in 24 hours. This morning's action alert already sent your message to three of the Senate conferees. Please keep an eye out for PK updates if we need to reach out to the other members of the conference committee.

Call for Conference Transparency

If you didn't get my not-so-subtle suggestion that the conference process is ripe for light to be shed on it, I'll say it plainly: the conference process needs to be made more transparent. When people talk of laws being written in back rooms by a select few, it's often the conference process they're talking about. Maybe the good work done by those at Sunlight Foundation and StimulusWatch.org could be extended to call for new transparency rules for this closed and undemocratic process.

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