As lawmakers prepare to release the full details of an alternative to the Stop Online Piracy Act (SOPA), Internet law expert Jonathan Zittrain remains skeptical that Congress's ability to produce a reasonable anti-piracy plan. After a several members of Congress put their names on a two-page preview of the new plan -- we'll call it OPEN based on the title of a draft of document -- CNET's Declan McCullagh reports that the first draft of the bipartisan bill will be released on Thursday by Oregon Sen. Ron Wyden, a Democrat, and California Rep. Darrell Issa, a Republican. Wyden's office recently released another primer on the SOPA alternative with the title "Fighting the Unauthorized Trade of Digital Goods While Protecting Internet Security, Commerce and Speech" (PDF).
Zittrain, a professor and cofounder of the Berkman Center for Internet and Society at Harvard Law School, says it's unclear whether the new legislation will be at all effective, since Congress doesn't appear to have done much research into the issue. So far, it sounds much better than SOPA. We'll know more when the Wyden-Issa draft is officially released, but based on what we know, two key differences set the largely loathed SOPA apart from its "less shrill" little sister, OPEN.
The new framework for the anti-piracy legislation doesn't appear to risk making a felon out of aspiring YouTube musicians or blocking Facebook, Twitter, and other sites that hosts user-generated (and potentially copyrighted) content. As Zittrain explained to Stephen Colbert last week, "[Under SOPA] Bieber singing his favorite songs on YouTube without authorization could make him a felon in jail for three years," due to the bill's broad definition of copyright infringement and draconian punishments. While the Beliebers would just die if Justin went to jail, civil rights advocates expressed much more concern over SOPA effectively granting the government permission to censor websites almost entirely, by blocking the domains of and links from search engines to sites suspected of hosting infringing content. The Atlantic's David Sohn and Andrew McDiarmid explain how SOPA "would empower the Attorney General to seek court orders against 'foreign infringing sites,' but this term's definition is so broad that any site with a non-U.S. domain name that allows user-generated content would qualify."
OPEN takes a more sober approach. "It appears to have no mention of network architecture so the filtering piece is off the table in this compromise," Zittrain said. Rather than granting the government the power to block domains or search results, OPEN focuses on cutting off revenue streams to the infringing sites by requiring online payment companies to cut off its funds and advertising networks to nix its related ads. In theory, this would force the foreign sites either to change either their content-hosting policies or their business model, although Zittrain isn't so sure this will be that effective. "People will come up with other ways to come up with means of earning money with stuff that people find compelling that don't involve payment processing or advertising," explained Zittrain. "It's just not clear you wanna go down that road." But it's certainly a step in the right direction -- away from allowing censorship, that is.
The really scary thing about SOPA is its potential to permit large scale Internet censorship without much oversight. It's a Pandora's Box sort of problem, especially given the vague legal language used in the bill. According to the proposed framework, OPEN cuts out the Attorney General, instead inviting rightsholders "to petition the International Trade Commission (ITC)" a little-known independent federal agency with more experience dealing with trade disputes over physical goods than it does with e-commerce -- "to launch an investigation into digital imports and digitally-facilitated imports of counterfeit goods," It's then the ITC's job to decide if the accused sites are "'primarily' and 'willfully' engaging in infringement of U.S. copyrights or U.S. trademarks" and if so, "issue a cease-and-desist order against an accused website" that could block payments and ads. Zittrain wonders if the hundred-year-old ITC is up to the task. "I think if you look at the ITC they've got a docket with like a hundred cases in it. If you look at the cases, they've got a bunch of stuff that's coming over on a barge that's infringing patents or doing something wrong." Compare that to thousands if not millions of copyright violations happening online daily.
Again, until we see the bill's actual language, we don't know exactly how the process would work. For now, we'll leave the bulk of the speculation over whether the ITC is ready to take on the world's wildly massive piracy problem to Harvard Law professors. The lawmakers working on OPEN seem to anticipate Zittrain's concern in the meantime with a few bullet points under the header "Why the ITC?" In brief, it already has a process set up for dealing with import-related copyright violations, which is more or less what piracy is. Perhaps more importantly, the document also vows to increase transparency and not to rush the process of taking down sites after reported violations. This is a big improvement compared to SOPA. As Sohn and McDiarmid explain, under the existing legislation, "Payment and ad networks would have to cease doing business with any site -- foreign or domestic -- within five days of receiving an allegation by a rightsholder that the site is 'dedicated to theft of U.S. property,' using a definition of 'dedicated' that has little relation to common usage." We'll have to wait and see how OPEN defines its terms.
The still-problematic lack of real research
Everyone seems to agree that the best thing about OPEN is that it's not SOPA. Zittrain compares the latest development in the raging battle between Hollywood and Silicon Valley to kabuki theater, the bizarre and heavily costumed Japanese theater tradition. In other words, SOPA and the fierce round of protest against the bill would inevitably make any alternative look more appealing. "SOPA represents such brazen one-sidedness so that the people who proposed it thought, 'Maybe we have a one in four chance pass of getting this though,'" Zittrain told us, adding that the newly released details of the alternative bill tones down SOPA's frightening-sounding approach. "This is certainly a much less shrill proposal," he said. "[But] it leaves a lot unwritten."
What Congress really needs to do, Zittrain said taking a step back from the anti-piracy legislation in question, is to do a little bit of fact-finding. So far, the debate around the best way of combatting piracy hasn't been too data-driven, and even the solutions -- so far, cutting off payment and ad networks seems to be the best weapon against pirating sites -- aren't necessarily solutions. So how do you come up with a better map? "Let's figure out in a rigorous way the scope of the problem here," Zittrain suggested. "It's one thing to beat the drums about jobs, about piracy. How about let's just figure out how big this problem is? I don't know of any source for that right now."
For more from Zitttrain, here he is squaring off against music manager and SOPA proponent Danny Goldberg on The Colbert Report.