A Response to Don Henley on the PROTECT IP Act

It almost sounds silly that someone could possibly salvage the PROTECT IP Act at this point in time. Still, that doesn’t stop some people from trying to pass off the PROTECT IP act as something that would actually do anything at all to stop piracy. We’d like to respond to this opinion with some counter-arguments of our own.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

There’s still debate around whether or not the PROTECT IP Act should be passed. While some have taken the viewpoint that it’s simply a violation of free speech, among other things, we’ve taken the arguments against the Act one step further and provided 8 ways to circumvent such a law in the US. To date, no one has stepped forward and provided an explanation why all 8 methods would not work against the Act. In my opinion, showing that the Act would never even accomplish any of the goals it sets out to accomplish is really the ultimate trump card for proponents of the act (as a bonus, it’s technically a neutral point of view).

Don Henley recently wrote an opinion piece trying to support the Act. We’ll say this right off the bat, Henley failed completely to show how the Act would stop piracy, only that the Act somehow magically provides the tools necessary to stop piracy. This pretty much amounts to wishful thinking at this stage, but it was amusing (and sad) to read about him trying to sell the Act as a great idea.

Here’s his opening remarks in his opinion piece.

If there is any question about the need for the United States to crack down on foreign websites engaged in criminal commerce, one need only enter keywords such as “MP3,” “DVDScreener,” or “Oxycontin” into popular search engines and scroll through the countless pages of site listings and sponsored ads.

You know you’ve lived to see it all when you see someone like me, someone who isn’t even a US citizen, finding himself explaining how copyright law works to a US copyright maximalist.

If one is seeing such things in the “popular search engines”, it means those who are responsible for enforcing the DMCA haven’t been doing their job. I’m sure Google would rightly point out that if there is an infringing link on their search results, all the rights holders have to do is file a DMCA complaint against the search engine and the links quickly get removed. Rights holders have been using the DMCA in the past and it’s possible to see messages that point out that some results have been taken down under the DMCA via Google. Maybe rights holders actually don’t care that infringing links can be found on Google and that’s why they are there in the first place. If some people’s experiences on YouTube are anything to go by, you don’t even have to prove you are the rights holder in the first place to take something down on a Google owned website.

The US has a DMCA law, use it and don’t complain if you think links are being missed.

In another point, Henley makes the following comment:

Theft of American products and ideas is no longer the hobby of teenagers with laptops; it’s big business, as the Office of the U.S. Trade Representative warns in a recent report on the world’s most notorious illicit markets. And they’re not just stealing movies and music; they are stealing America’s jobs and future.

The problem here is that the US entertainment industry was established thanks to piracy. Just ask Lawrence Lessig. I think Henley would be ignoring history if he thinks that piracy started as a “hobby of teenagers with laptops”. Moreover, downloading of music and other such content has been going on way before laptops were considered a replacement to the desktop computer.

Personally, I think if piracy destroyed American jobs, they would have been destroyed by now. Instead, we live in a world where recycled movies are still being made, bad music is still being played on mainstream radio and games still being created so that you have to buy more expensive computers to see every lousy shard of 3D animation or face having the game crash your computer.

Now, before Henley thinks of saying something like, “well, look at the movie industry and all the jobs being lost!”, I encourage him to look at the problem of Hollywood’s outsourcing habit first.

Henley also goes so far as to try and push what are probably made up numbers to begin with:

Criminal foreign websites trafficking in American arts and entertainment products cost the U.S. economy $58 billion annually, including more than 373,000 lost American jobs, $16 billion in lost earnings, plus $2.6 billion in lost federal, state and local government tax revenue, according to the Institute for Policy Innovation.

Henley might have one cherry picked study that tries saying this, but we’ll counter this with not one, not two, but three studies that would beg to differ. Those three are only scratching the surface of a large body of research in this area that says that file-sharing and p2p activity either have a net positive effect on the industry or have no effect on the creative industry at all.

Sorry Henley, try again.

Don’t worry, he does:

Stealing American entertainment products and counterfeiting our goods are federal crimes. Search engines are the No. 1 way people find rogue websites. Yet as Congress debates legislation that would enable U.S. law enforcement to protect American businesses and consumers from foreign criminal enterprises on the Web, search engines such as Google are heavily lobbying lawmakers to allow the companies to continue to list illegal websites in search results. This loophole would render the bill virtually useless.

It seems convenient to use vague terminology here. It needs to be pointed out that non-commercial copyright infringement is a civil matter, not a criminal matter. I challenge Henley to cite the laws that say downloading an MP3 online for free is a criminal offense (and not a civil matter) and cite court cases that agree with this. Sorry Henley, using vague terminology in an effort to confuse matters doesn’t work with me.

In addition, Henley suggests that search engines are lobbying congress to be able to list “illegal” websites in their search results. Since Henley completely failed to do so, I think he should cite when this type of lobbying occurred. At what point is Google saying, “We wish to display illegal websites in our results”? I don’t recall hearing search engine spokespeople say something to that effect, maybe Henley would like to elaborate on that.

On the contrary, though, we are more than aware of Google co-operating with rights holders. Besides the DMCA complaints, I do distinctly recall Google agreeing to filter web results for pirated material back in January. Was this somehow forgotten in Henley’s comments? Maybe. So we hope the link jogs his memory.

Henley goes on to try attacking a few opponents to the bill:

Critics of this pending legislation need to be honest about the company they keep and why they essentially aid and abet these criminal endeavors. The Electronic Frontier Foundation (EFF), a civil liberties group, claims such a bill would “break the Internet,” while Google Executive Chairman Eric Schmidt says it sets “a disastrous precedent” for freedom of speech. No one has the freedom to commit or abet crimes on the Internet. Stopping crime on the Internet is not, as EFF says, “censorship.” There is no First Amendment right to infringe intellectual property rights.

To Henley’s credit, he actually did offer citations in this particular instance. Still, just looking at this paragraph, one can easily identify this as a straw man attack. Henley acknowledged that the EFF said that this could break the internet and that this could be a slippery slope of introducing censorship. Then, he suddenly says that there’s no First Amendment right to infringe intellectual property rights. Sure, Henley could say that there is no First Amendment right to infringe, but that is not what the EFF is saying. Henley is exaggerating and distorting what the EFF is saying in the first place.

If you are wondering what did the EFF actually said, then let’s take a look at the very link Henley is referring to:

Free speech is vitally important to democracy, which is why the government is restricted from suppressing speech except in very specific, narrowly-tailored situations. But this bill is the polar opposite of narrow — not only in the broad way that it tries to define a site “dedicated to infringing activities,” but also in the solution that it tries to impose — a block on a whole domain, and not just the infringing part of the site.

In other words, what is to fear here is the fact that an entire website would be blocked. What if only one page contains infringing material and the rest is perfectly legal? What would happen if that website is censored too? Then legal free speech is technically being infringed. This is not about trying to bundle infringing material into the First Amendment, but protecting free speech.

I think, in this case, Henley needs to attack the argument, not the straw man.

Henley continues with the following:

Search engines, including Google, already make filtering tools that block references and links to websites featuring pornographic and other content considered unsuitable or offensive. The technology is there, but the will of some companies is not. It seems that their real agenda is to avoid the loss of advertising, “pay per click” and other revenue if these sites were shut down. After all, Google is reportedly bracing for a $500 million fine for doing just that — accepting untold advertising dollars from illegal online pharmacies.

To address the first part, Henley is referring to Google’s Family Safety tools. While, on the surface, Henley sounds like he’s making a reasonable argument, 5 seconds of research completely obliterates the credibility of this point. If you look on that page and click on the FAQ, you’ll see the following:

How does Google protect kids from sexual content and other content that’s inappropriate for them?

Google’s SafeSearch screens for sites that contain inappropriate content and eliminates them from search results. While no filter is 100% accurate, Google’s filter uses advanced technology to check keywords, phrases, and URLs. Users can modify and lock their search settings by selecting the Settings on the top right corner of the Google homepage and choosing Search Settings. Scroll down to SafeSearch Filtering and click “Lock SafeSearch”.

In other words, it filters for keywords among other things. I think that if you ask someone who knows a lot about filtering technology, they’ll probably acknowledge that a keyword filter is pretty much useless in stopping piracy. Keyword filtering also bares little resemblance to what is being proposed here in the PROTECT IP Act – DNS filtering. ISP level DNS filtering and user level keyword filtering are two completely different pieces of filtering technology. I don’t think Google can compel ISPs to block a whole lot of websites. besides, I would imagine that if Google were to be put in a position where they think certain websites should be removed from the internet, then they’d probably refer the matter to police.

To address the second part of this paragraph of Henley’s, I think it’s a little absurd to insinuate that Google makes it’s money solely on pirated material. I would imagine that people use Google for way more than just piracy related activities (i.e. solving a computer problem, shopping, video game help, and looking for medical related information when they should be consulting doctors). Suggesting that Google runs on pirated material through their ads is simply presumptuous at best and a flat out lie at worst. To name one example, last I checked, ThePirateBay doesn’t use Google Adsense. Party Poker? Sure. Google Adsense? Not to my knowledge these days.

Henley then goes on to say the following:

Proposed solutions aren’t radical; they are common-sense extensions of current legal powers. As with other federal crimes, authorities have the ability to seize ill-gotten gains along with the tools used to commit the crimes. But most criminals register their domain names overseas, forcing U.S. law enforcement officials to play a frustrating online cat-and-mouse game. In order to take down these illegal sites, they need cooperation from U.S. Internet service providers and search engines. American firms can and should block these criminal sites, and U.S. ad networks and credit card companies should cut off money going to them. The “Protect IP Act” would give law enforcement the tools to accomplish this goal.

Like I said in the beginning, the proposed solutions are easily by-passed. So if common sense was put in to the process, the PROTECT-IP act would have been scrapped by now.

In addition, what’s to stop the so-called “cat and mouse” game in the PROTECT-IP Act? With the PROTECT-IP Act, a domain is censored, and a new domain starts up. Does the name MAFIAAFire mean anything to you? What will really happen is that before, domains are seized by the FBI, knocking websites offline causing the operators to use alternate domain names (hence the cat and mouse suggestion). After the PROTECT-IP, domains will be censored, causing website operators to re-locate to new domains (hence the cat and mouse domain).

Henley then closes with the following:

Online thieves are stealing American creativity, ingenuity and innovation. They are killing American jobs. Members of Congress should not be taken in by special interest agendas disguised as First Amendment claims, or they themselves will be as culpable of abetting theft as the rogue sites and companies that support them.

So really, he’s using everything that can be so easily debunked and concluding that if politicians don’t legislate his way, they are aiding and abetting criminals.

I think before Henley writes anything more on this topic, he should go out and see how things work in the real world. If he had points grounded in reality, he might be able to have something convincing. For now, I’ll just say this about Henley’s article: Completely debunked.

Drew Wilson on Twitter: @icecube85 and Google+.

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