The House and Senate are both drafting "rogue sites" legislation that will likely support website blocking at the domain name level and will require online ad networks and credit card companies to stop working with sites on the blacklist. That idea is controversial enough when only the government has the power to pursue the censoring; it gets even more controversial if private companies get the right to bring a censorship action in court without waiting for government to act.
Both houses of Congress are considering such a "private right of action" as they work to review and revise last year's COICA Web censorship bill, but Google can't say strongly enough what a bad idea this would be.
Appearing at today's "Legitimate Sites v. Parasites" hearing before the House Judiciary Committee, Google's Kent Walker was clear: a private right of action to bring a COICA claim would give rightsholders tremendous leverage over Google. Walker went so far as to warn of "shakedowns" from private companies wanting to force changes in Google's behavior.
In his written remarks, Walker expanded on the thought. "Policymakers should foreclose private rights of action and tailor intermediary requirements appropriately," he said. "Given the evasive tactics bad actors employ to avoid detection, no intermediary will be able to prevent all abuse of its systems, and efforts to legislate must be careful not to hold intermediaries responsible for abuses of their systems that could not reasonably be prevented. Legislation should not include a private right of action that would invite suits by 'trolls' to extort settlements from intermediaries or sites who are making good faith efforts to comply with the law."
Last year's version of COICA included no private right of action, but that could change this time around. As Rep. John Conyers (D-MI) said today, "We could begin to grant a right of private action I would be the first to be critical if we step over the line, but I think that there's more that can be done, and I think that we need to use this hearing as another opportunity to come up with some legislation that we'll all be proud of."
Google came in for particular scrutiny at the hearing today. Rep. Bob Goodlatte (R-VA), who ran the hearing, complained that he had Googled "free mp3 taylor swift" and the entire first page of results came from unlicensed sites. He complained that typing "watch movies online" led Google to suggest an autocomplete search for "watch free bootleg movies online." And he wanted to know why sites like The Pirate Bay and Isohunt continue to show up in Google's search results.
Walker said that Google is willing to help, but noted that the search giant faces"Whac-a-Mole problems much as the content industry does." Besides, many sites like The Pirate Bay also feature at least some legitimate material, and Google doesn't want to be the "judge, jury, and executioner" for websites. Finally, the company simply doesn't know what sites are "authorized" outlets for music and movies, nor when some use is fair. Even limiting search terms is dicey, he noted, since "cheap" or "free" are legitimate keywords, "faux" can be part of a search for (legal) fake leather, and "knock off" might refer to legal dresses sold by Macy's.
Google prefers that most action be "collaborative," saying that it largely needs rightsholders to tell it what content is infringing, rather than legislative remedies.
Something must be done
Some representatives were critical of the ideas found in COICA, and of the existing domain name seizures that have been underway for a year at Immigration and Customs Enforcement (ICE). Rep. Zoe Lofgren wondered whether there was any "limit on ICE's authority over the Internet?" Rep. Conyers asked ICE director John Morton to admit that he had been overly broad when ICE mistakenly took down an extra 80,000 sites in February and directed them to an ICE child porn warning page.
But the general mood of the hearing was that tough new steps must be taken. As Rep. Darrell Issa (R-CA) asked Morton during his questioning, "What change in the law would allow you to pursue everyone?"
While stressing he wasn't talking about kids using P2P file-sharing, Issa wanted to bring the hammer down on everyone else. His staff, he said, recently ordered him a 256GB thumb drive from "Fantastic Deals"; when the drive came, it was a counterfeit Kingston USB drive. Issa, who made his money creating the Viper car alarm and watched as counterfeiters knocked off imitations, demanded "zero tolerance" from ICE. "You have to get it down to zero," he said.
Morton rather gently noted that this request posed a "resource issue" and that other "enforcement priorities"—such as going after child porn and fake imported pharmaceuticals—made getting to zero rather difficult for his department.
No one else went so far in their demands, but there appeared to be bipartisan consensus that something like COICA should be adopted to at least slow online infringement. The need for new legislation is "beyond reasoned discussion" and "the furthest thing from censorship," said Rep. Goodlatte. Rep. Mel Watt (D-NC) said that "piracy" sounds romantic, but it's really "what we still refer to in my neighborhood as theft or simple stealing New authorities and enforcement strategies are critically needed." And Rep. Lamar Smith (R-TX) blasted the "destructive effects of online parasites."
The committee should introduce its new parasite-clearing legislation in the next few weeks.
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