Ezra Klein: Let’s go back to the beginning of your involvement in this. The Stop Online Piracy Act and Protect IP Act are well known at this point, but your involvement began earlier, with the Combating Online Infringement and Counterfeits Act (COICA).
Ron Wyden: I have been fighting this for almost a year-and-a-half. The COICA bill, which was the predecessor in the Senate to the Protect IP Act, came out in September. It was by Chairman Pat Leahy, just as Protect IP is. And since then, our side has been fighting above our weight. We’re up against one of the most powerful, savvy, and active of the traditional Washington lobbies. Their bill has cleared the committee unanimously twice. And we said from the very beginning that there’s a lot on the Senate calender, these are complicated issues, and when this is front-and-center, there will be a tidal wave of opposition. And we’ve been proven right on that.
EK: And how exactly did you slow the bill?
RW: I put a public hold on it. As you know, I’ve been a leader in the effort to make all holds public. And I said, from the beginning, that first, there’s a problem here. There’s no question that people who sell fake Rolexes or tainted Viagra or movies they don’t own are bad actors. Second, there’s a straightforward solution, which is to cut off the money that gets people into piracy. But third, to solve this problem by doing damage to the Internet, which has been a juggernaut for job growth and innovation and free speech, is a mistake. So that was our argument: There’s a problem, there’s a remedy, but you don’t need a cluster bomb to solve it.
EK: What makes PIPA and SOPA cluster bombs? If you agree there is a problem, why aren’t these acceptable solutions?
RW: PIPA and SOPA, at their heart, are censorship bills and blacklisting bills, and they undermine much of the architecture of the internet. I recognize that you don’t have discussions about the domain name system at every coffee shop in America. But it’s essentially the directory to the net. If you didn’t have a universal naming system -- for my Senate site, wyden.senate.gov -- it would just be gibberish. What the bills do is say, when you get a court order, you can’t use the domain-name system to resolve to the IP address.
EK; When you say “resolve to the IP address,” exactly what that means. Let’s say I run EzraTube.com. And someone has uploaded copyrighted content to my site. What happens next?
RW: When you type EzraTube.com into your browser, your browser is asking Comcast to ask other servers where that goes. These servers basically act as phonebooks. What the so-called “DNS remedy” in the bill does is enable the attorney general to get a court order that tells Comcast, ‘when people want to find EzraTube.com, don’t send them there. Send them to a Department of Justice site instead.’ People who want to work around this would be able to. There are already third-party tools that use foreign servers or other domain-name servers outside of Comcast’s network. But that’s a problem because, for the last 15 years, we’ve spent all this time building the DNS system into a secure standard. Because of this effort, all of the important work on the net is built around the DNS system. In the national security space, everything we’re trying to do on cybersecurity is built around DNS system.
EK: And so their remedy to piracy is to make it a hassle for me to go to sites that include potentially pirated content, but the side effect is that the remedy corrupts the primacy and impartiality of the DNS system?
RW: Right. Though, by the way, it should be said that over the weekend, Chairman Leahy said he would make changes in the DNS part of the bill. We haven’t seen details of that. If it’s just a directive to “study it” before it goes into law, I would oppose that. So we have questions about that provision. We have questions about the authority the Justice Department has to get a court order to keep a search engine from directing to the site. That’s censorship. We have questions about the definitions applying to information-location tools, which our reading suggests that could apply to almost anything. That makes the legislation too broad.
EK: As I understand it, another element of these bills is that they would move the burden of policing content to the Web sites themselves. Right now, YouTube, if alerted to pirated content, needs to get it down. Under SOPA and PIPA, YouTube would be responsible for making sure it never goes up in the first place, and liable if they missed a video.
RW: You are describing what I call the “turn Web sites into Web cops” provision. This is a provision that has raised concern about what this is going to mean for innovation. If you’re a small Web site trying to get off the ground and you look at that provision, you put people through this kind of legal burden, which will mean a significant amount of money for anyone trying something new, it will do a lot of damage to innovation. That’s one reason the venture capital folks are speaking out.
EK: This also seems to favor the big rather than the small. YouTube has a legal department now, and Google’s resources are backing them. They could maybe survive this. A start-up competitor to YouTube couldn’t.
RW: You got it. That site won’t be funded. And it gets to the question of capitalistic approaches. Two people in a garage will have to become two people in a garage with a fleet of lawyers upstairs. The other side of this is private right of action, which will allow the big players you’re talking about to swamp Web sites with lawsuits.
EK: Explain exactly what a “private right of action” is?
RW: It creates an opportunity for competitor to snarl rivals in the legal process. In the case of Viacom and YouTube, you would allow a media company to file a lawsuit against a competitor. So in addition to the government saying there has been an infringement of copyright, now private corporations get that power. It’s one thing to have a small group of government lawyers policing the law. Now it allows private corporations with big legal teams to use those lawsuits as an offensive weapon against competitors.
EK: And where are these bills now? SOPA, as I understand it, is temporarily shelved in the House, and Leahy has talked about reopening PIPA in the Senate.
RW: What’s happened over the last few days is Chairman Leahy and the leading advocates of these bills have essentially accepted that these bills -- specifically PIPA, which has a vote scheduled for Jan 24th -- contain essential flaws. My view is that we don’t know the details of these changes, so I believe the bill remains a clear threat to job growth, innovation, and speech. So the position I’m taking is for the Senate to vote on PIPA next week is premature, and could do great damage to the prospect of reaching a real and enduring agreement that would combat copyright infringement without doing permanent harm to the internet. This then becomes a question of taking the time to do it right. Our alternative bill, OPEN, hasn’t even had a hearing.
EK: Tell me about your alternative then, and how it differs.
RW: The heart of this is to move this out of the narrow, legalistic confines of the judicial system, where you have scores of judges issuing different opinions, and moving it to where it really belongs, which is the International Trade Commission. These rogue, foreign Web sites are engaged in international commerce and essentially perpetrating an unfair trade practice. The International Trade Commission is set up to deal with these goods, and they have great expertise on intellectual property.
EK: And how does your bill handle things like the DNS systems and the search engines?
RW: They’re not in there! We have a transparent process for ensuring all sides get a hearing, we make it possible to cut off the money to those who infringe on the rights of copyright holders, but we don’t have these DNS provisions and search engine provisions and private rights of action. We don’t use the Internet as the focus of enforcement in the bill. What I hope people see is that while this bill applies to foreign rogue Web sites, the enforcement machinery in PIPA is American companies, American Web sites. We don’t use that. We use the narrowly defined trade laws and laser in on the bad actors.