SOPA and PIPA: What Went Wrong?

Hand Grenades for Gophers

Beyond the protests, the two bills represented a huge intrusion into the Internet, allowing the U.S. Department of Justice to seek court orders requiring Internet service providers to cut off access to foreign websites accused of copyright infringement and search engines to remove results to those sites.

Some SOPA and PIPA opponents called the bills an approach equivalent to using hand grenades to deal with a gopher problem in your backyard.

Using a fast-track legal process where most accused website owners wouldn't get a chance to respond to the DOJ requests, the court proceedings raised serious questions about due process and censorship of legitimate content on those sites. And the blocking of sites raised serious concerns about cybersecurity, with Web users likely to turn to foreign, and potentially unsafe, alternatives to find the sites.

Meanwhile, Smith, the lead sponsor of SOPA, and Senator Patrick Leahy, a Vermont Democrat and lead sponsor of PIPA, attempted to railroad the bills through Congress. Leahy, chairman of the Senate Judiciary Committee, introduced PIPA on May 12, and forced a committee vote on it two weeks later, without one public hearing dedicated to the bill. Leahy's spokeswoman noted that the issue of rogue foreign websites came up in several hearings over the past two years, but none focused on the bill exclusively.

Smith, chairman of the House Judiciary Committee, convened one hearing on SOPA, but the witness list was stacked in favor of the bill. Both lead sponsors hung on to the contentious ISP filtering provisions in the bills until earlier this month, when public outcry was starting to coalesce.

The old-politics approach didn't work in the face of a "public avalanche" of public opposition, even though some estimates had supporters of SOPA and PIPA outspending opponents by a 10-to-1 margin, said Gary Shapiro, president and CEO of the Consumer Electronics Association, a trade group opposed to the bills.

"The strategy was to push a one-sided approach, ignore objections and rely on your well-financed friends on the Judiciary Committees simply to approve whatever you give them," Shapiro wrote in a blog post. "The overreach was so huge, the arrogance so large, the result so horrid, that they truly hurt their so-called friends. That's why the legislative process should have fair and balanced hearings."

Just the Facts

Finally, supporters of the bills didn't convince the public about the facts.

Supporters of the bill, including Leahy, Smith and some trade groups, repeatedly complained about misinformation spread by the other side. There was plenty of misinformation to go around. Some opponents insisted the bills would "kill" the Internet, when that was an exaggeration.

But Smith and Leahy insisted there were no free speech problems with the bills, when many websites likely targeted by the bills have comment sections or other content protected by the First Amendment of the U.S. Constitution. And the MPAA's Dodd, appearing on the Morning Joe television show on the day of the Web protests, insisted there was no "private right of action," Washington code words for private lawsuits, in the bills.

Despite Dodd's claims, SOPA and PIPA would allow private copyright holders to file lawsuits forcing online advertising networks and payment processors to stop doing business with accused websites.

Supporters of the bills also have claimed billions in dollars in lost profits from foreign rogue websites, while opponents have raised questions about those estimates. Supporters have said online piracy costs the U.S. economy huge money, up to $250 billion a year, but several people, including the authors at Freakonomics.com, have disputed those numbers. The U.S. Government Accountability Office, in an April 2010 report, called the business of estimating economic losses from piracy "extremely difficult."

There's no disputing that piracy costs money and jobs, countered Jonathan Lamy, a spokesman for the RIAA. The U.S. recording industry sold $15 billion worth of music in 1999, while now it sells less than $7 billion, he said. "Digital music theft is not the only reason for that decline, but we believe it is the primary one," he said.

The RIAA hopes critics of the two bills are sincere about their stated desire to work on constructive solutions to online piracy and counterfeiting, Lamy added. "Ultimately, we helped to establish a national consensus that rogue websites were a genuine threat to consumers, manufacturers and the creative community," he said. "We have not agreed upon the best, most meaningful approach."

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

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