The latest clash about proposed legislation to address the ongoing, massive theft of intellectual property on the Internet has elements both familiar and rare. It is common to debate how far Congress should go in addressing a recognized problem — whether, for example, new copyright remedies should be enforced only by the attorney general or whether individual artists and companies should have more mechanisms to defend their rights.
What is striking about the current debate, however, is how many critics of anti-piracy legislation acknowledge that a serious problem exists — a yearly loss of hundreds of thousands of jobs and many billions of dollars — yet seem unwilling to meaningfully address the problem. Google, Facebook and Twitter, for example, have all acknowledged “the problem of foreign ‘rogue’ websites.” Yet they have offered little in the way of solutions.
It is not a political issue. The Senate Judiciary Committee unanimously sent one bill, the Protect IP Act, to the floor, and a fairly similar House bill, the Stop Online Piracy Act (widely known as SOPA), was introduced by Judiciary Committee Chairman Lamar Smith (R-Tex.), the committee’s ranking Democrat, Rep. John Conyers (Mich.), and 26 other members.
Yet while nonpolitical in nature, the disagreement about new legislation has a deeply ideological cast. For many critics, their objection is not to this or that provision but to the very concept that in some circumstances — and a copyright violation is one — what goes up on the Web must come down.
The United States has never had a policy exempting the Internet from laws governing content. We cannot and should not.
Secretary of State Hillary Clinton broke no new ground when she observed, almost in the same breath, that there was an “urgent need” to protect freedom of expression on the Internet while still dealing with those who use the Internet to “distribute stolen intellectual property.”
The judges who have decided, without dissent, that a libel on the Internet is just as subject to punishment as libel in a newspaper were not wrong. The proposition that plagiarism on the Internet must be treated the same as plagiarism by a television program is not controversial. Nor are the rulings — and there are none to the contrary — that make plain that infringements of copyright on the Internet are as criminal there as elsewhere. The Internet is not a law-free zone.
Yet when legislation is introduced to put teeth in the effort to prevent rampant and unconstrained theft of copyrighted creative efforts, it has been denounced as creating “walled gardens patrolled by government censors.” Or derided as imparting “major features” of “China’s Great Firewall” to America. And accused of being “potentially politically repressive.”
This is not serious criticism. The proposition that efforts to enforce the Copyright Act on the Internet amount to some sort of censorship, let alone Chinese-level censorship, is not merely fanciful. It trivializes the pain inflicted by actual censorship that occurs in repressive states throughout the world. Chinese dissidents do not yearn for freedom in order to download pirated movies.
Nor is it criticism that finds support in U.S. law. Infringing materials have never been protected by the First Amendment. The first Copyright Act was adopted in 1790, the year before the First Amendment was ratified. While there has sometimes been tension between the two, it has never been suggested that wholesale theft of copyrighted creative efforts such as movies was somehow within the realm that the First Amendment protects. In fact, in a leading Supreme Court case (which I argued and lost), the justices concluded that the Copyright Act was an “engine of free expression” that functioned by “establishing a marketable right to the use of one’s expression.”
None of this means that whatever legislation is adopted should not be carefully drafted to minimize even potential conflicts with principles of free expression. But there is no doubt that the government may seize copyright-infringing material without violating the First Amendment, and there should be no debate that Congress has a serious obligation to narrowly tailor such remedies to interfere with as little protected speech as possible.
In the end, much of the criticism of the proposed legislation was encapsulated in the assertion by one member of Congress that it would imperil the Internet “as we know it.” In one sense, it would. As a 2011 study by Envisional, conducted at the request of NBC Universal, reveals, “across all areas of the global internet, 23.8 percent of traffic was estimated to be infringing.” In the United States, the report estimated that 17.5 percent of Internet traffic was infringing. That is something worth changing.
The writer, a senior partner at Cahill Gordon & Reindel LLP, represents the Directors Guild, the Motion Picture Association and various entertainment industry unions.