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Walking the Plank

The flawed bipartisan approach to cracking down on Internet piracy.

Last May, the novelist Scott Turow published yet another courtroom thriller—Innocent, a sequel to his hugely popular 1987 debut Presumed Innocent. “I was lucky enough that it landed on the best-seller list,” he quips, as if there were ever any doubt. But the celebration didn’t last. Turow’s friends soon alerted him to the fact that knock-off e-versions of his novel were being offered at steep discounts on shady websites all over the Internet. What followed, he says, was an endless game of “whack-a-mole,” in which his publisher kept sending take-down letters and new sites selling counterfeit copies of Innocent kept popping up.

Since his brush with online pirates, Turow, who was elected president of the Author’s Guild last year, has become one of the most vocal celebrities arguing that the Internet’s army of copyright infringers could spell doom for literary culture. “If pirates continue to attack publishing, it will collapse,” he warned the Senate Judiciary Committee in a hearing on Internet piracy this past Wednesday. In The New York Times, he recently suggested that piracy would destroy literary writing much as the demise of London’s Globe Theater crippled theater in the seventeenth century. (It’s a dubious analogy for a slew of reasons, but Turow’s op-ed got plenty of attention.)

It’s hard to find anyone in Congress who disagrees. The Judiciary Committee hearing this week was set up to rally support for a forthcoming bill that will empower the Justice Department to crack down on websites accused of copyright infringement. A similar measure last year, introduced by Vermont Democrat Patrick Leahy and Utah Republican Orrin Hatch, earned rave reviews from both parties, rocketing out of committee on a 19-0 vote. The bill was only stopped when Oregon Democrat Ron Wyden put a hold on it, citing warnings by tech types that the bill could disrupt the free flow of information on the Internet.

Because the measure gets support from both parties (not to mention groups like the Chamber of Commerce), it hasn’t received a whole lot of attention. There were only two reporters present at Wednesday’s hearing, compared with the scores of journalists who showed up for a House hearing at the same time on “net neutrality,” an issue that has turned into a high-profile partisan fight. Indeed, it seemed like the only real dispute among witnesses on the Judiciary panel was over just how much piracy was hurting America: $58 billion per year? $100 billion per year? (Rhode Island Senator Sheldon Whitehouse went one further: “I contend that America is on the losing end of the largest transfer of wealth through theft and piracy in the history of mankind.”)

But bipartisan consensus, nice as it sounds, isn’t always a virtue. As it turns out, there are plenty of reasons to worry about the broad plans Congress is hatching to crack down on piracy. The fact that so few people on the Hill are speaking out about those problems may say less about the merits of Leahy’s bill and more about the odd power disparities that always surround copyright issues.

There’s certainly good reason to go after sites that infringe on copyrights—even if you’re not bothered all that much by people downloading bootleg versions of Transformers off BitTorrent. At the Judiciary hearing, Tom Adams, the CEO of Rosetta Stone, noted that his company has had to fend with more than 1,000 sites offering counterfeit versions of its language-training program in the last 18 months alone. A Google search of “Rosetta Stone,” for instance, brings up ads for a $279 “Rosette Stone.” Customers buy the knock-off program, Adams lamented, kinks ensue, and suddenly they’re on the phone cursing out Rosetta Stone’s customer service reps.

In theory, companies can use existing law—namely the Digital Millennium Copyright Act—to get these pirate sites taken down. But it’s a lot trickier to get Internet Service Providers in, say, Russia or China or Belarus to obey these orders. One solution, then, might be to go after the intermediaries that allow a website to make money. After all, a site selling knock-off Rosetta Stone programs needs to advertise itself on Google and contract with a financial company so that duped shoppers can fork over their cash. But even this isn’t always simple. Back in 2006, Visa received a complaint from the record industry that the Russian website was allowing unauthorized music downloads. Visa moved to stop processing financial transactions for the site. But a Russian court disagreed that was violating copyright and found Visa guilty of breach of contract.

Leahy’s bill last year tried to tackle some of these issues. It gave the Attorney General the power to order websites accused of pirating to cease their activities, and, what’s more, it required the supporting companies a website needs to thrive—the financial transaction providers, the search engines, the advertisers, and the ISPs—to stop doing business with the offending site. Most strikingly, a “blacklisted” site would also be removed from the Internet’s domain name system—in essence, making it impossible for browsers to find the site. “Generally speaking, the bill forces all the Internet ‘middlemen’ to act as if a part of the Internet doesn’t exist, even though that page may otherwise be completely available and accessible,” wrote Richard Esguerra of the Electronic Frontier Foundation (EFF), in an analysis of the bill.

Trouble is, identifying genuine infringers isn’t always so straightforward—and there’s always the prospect that overly broad powers could be abused by the government. After all, it’s one thing to go after a site that allows you to stream pirated movies. But what about a blog that merely links to said site—or an online discussion forum where members talk about the best places to downward bootleg films?

Last fall, after the Department of Homeland Security seized 82 domain names from sites accused of piracy, Wyden dashed off a letter to the agency asking how, exactly, the government determined guilt. (The operator of one seized site,, claimed that he had only posted authorized songs sent to him by record labels and artists.) Without clear checks, Wyden noted, major record and film companies could abuse these enforcement laws to shut down smaller competitors. What’s more, if the Justice Department ordered an entire domain name to be taken down, it could wipe out a large amount of non-infringing material on a site—stuff that should, in theory, be protected speech under the First Amendment. As Wyden put it, “[It’s] like using a bunker-busting cluster bomb when what you really need is a precision-guided missile."

In the worst case, excessive enforcement could fracture the Internet—by creating, in essence, an online underground. Last year, nearly 100 Internet engineers sketched out this scenario in an open letter to Congress. Say the Justice Department blacklisted a large number of sites and blocked their domain names, so that, when you typed into your browser, it wouldn’t lead to a website—even though the site would still, technically, exist. In response, crafty engineers might decide to create systems other than the current global Domain Name System (DNS) to allow Americans to look up these blacklisted sites. “Errors and divergences will appear between these new services and the current global DNS,” the letter notes, “and contradictory addresses will confuse browsers and frustrate the people using them.”

That sure soundsworrisome. So why aren’t more people in Congress fretting? It might be because those nerdy warnings of a splintered Internet are awfully abstract. (The same goes for worries that vague enforcement guidelines could “chill” free speech.) These fears don’t have the same gut-level appeal as tragic tales of small businesses pillaged by online piracy—let alone Scott Turow’s visions of the death of literary culture. (By the way, not allexperts agree with Turow; some studies suggest that most people who download pirated e-books wouldn’t have bought the book otherwise, in which case piracy doesn’t bite into sales so much as increases a writer’s exposure.)

The more likely explanation, however, involves raw power. The content industry—including large record labels and Hollywood—has a deep working relationship with Congress. In contrast, the various Silicon Valley companies that object to overzealous Internet policing (on the grounds that it could stifle innovation) often don’t even have lobbyists up in D.C.

But what about companies like Google and Yahoo? Aren’t they influential up on Capitol Hill? And aren’t they in favor of a free and open Internet? Usually. But, on Leahy’s piracy legislation, Google has been fairly soft-spoken. (The company declined to testify at Wednesday’s hearing). One theory to explain this is that Google is increasingly wary of provoking the content companies. Its fledgling GoogleTV, for instance, is still being blocked by Viacom and the four broadcast networks. And the company is reportedly negotiating with record labels to launch a competitor to iTunes. That might explain why Google has recently been taking subtle steps to attack infringers—like blocking search terms associated with piracy from its AutoComplete function.

This interest-group imbalance, though, means that flawed IP bills could sail through Congress with scant scrutiny. If Wyden hadn’t put a hold on Leahy’s bill last year, some of the most glaring problems (like flimsy due process for the accused pirates) might never have gotten noticed. But Wyden’s continued opposition is increasingly lonely; the new version of the law is expected to pass this year. And we can expect more situations like this ahead, since copyright advocates will keep demanding stricter and stricter crackdowns—especially as crafty pirates figure out how to evade existing laws.

At the Judiciary hearing, Turow said he considered the Leahy bill only “a first step.” He might be wrong about the future of literature, but as political predictions go, that one’s probably bang-on.

Bradford Plumer is an associate editor at The New Republic.

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