Web freedom vs. Web piracy

Wikipedia went dark for a day. Google hid its logo under a black shroud. And hundreds of other websites darkened their pages temporarily in a massive, coordinated protest against a pair of bills that would step up enforcement of copyrights and trademarks. Wednesday’s demonstration provoked such an intense backlash against the Protect IP Act and the Stop Online Piracy Act (better known as PIPA and SOPA) that by the end of the week, more than 100 lawmakers had declared their opposition and both bills had been placed on hold.

It was a stunning — and in some ways troubling — show of lobbying muscle by some of the Web’s most popular companies. Shell-shocked supporters of the bills complained that the tech industry had misled the public and glossed over the damage being done by foreign-based websites peddling unauthorized copies of U.S. movies, music and brands. But the bills went too far, giving rights holders the power to do much more than proponents said they would. That’s a problem lawmakers need to solve before moving ahead.

The original versions of PIPA and SOPA would have enabled the Justice Department to seek court orders to seize the domain names of foreign sites that were either “dedicated to” infringing copyrights and trademarks or just facilitating infringement. Such orders would require Internet service providers to steer users away from the sites, search engines to block links to them, and payment processors and advertising networks to cut off their financial support. The measures would also have authorized copyright holders to seek similar court orders against any site dedicated to infringement.

Opponents of the bills blasted many of the provisions, but two criticisms have been in the forefront. First, online security experts argued that requiring ISPs to block access to offending sites would undermine efforts to develop a better domain name system to combat fraud and malware. Prodded by the Obama administration, the bills’ authors have agreed to drop that provision.

The second criticism is that by enabling federal courts to order search engines (or in the case of the House bill, virtually any Web page) not to publish links to offending domains, the bills would give the U.S. government the power to “censor the Internet.” That concern has become opponents’ main rallying cry, and it was the dominant theme of Wednesday’s protests.

Proponents of the bills say that argument is misleading and overblown. There is no 1st Amendment right to share pirated movies or buy counterfeit Prada bags. No one complains when search engines block links to phishing sites. And it would hardly be an injustice to deter people from patronizing an online business whose wares were illegal.

They have a point, but the issue is more complex than that. Trying to stop Americans from seeing sites that the rest of the world can see does amount, technically speaking, to censorship. Although that’s not hard to defend in the case of a foreign site that profits from piracy, the vague definitions in PIPA and SOPA could result in legitimate, non-infringing material being blocked alongside pirated music and movies. (Online lockers would be vulnerable. So might a site such as YouTube, where users upload both original and bootlegged content.) That kind of broad-brush approach would be unconstitutional if applied to book publishers or libraries, so why should the Internet be any different?

Not that Wednesday’s protests acknowledged these complexities. Little mention was made of the foreign sites that sell illegal copies of MP3s, or the advertiser-supported services that offer bootlegged versions of new movies. Instead, the protests reduced PIPA and SOPA to a black-and-white question: Should the government have more power over the Internet? That draws an easy and emphatic “no” from a population that’s increasingly reliant on the Web. The real issue, though, is whether foreign sites designed to capitalize on pirated and counterfeit goods should be allowed to prosper with the help of U.S. users — and U.S.-based tools for finding and monetizing content online — just by staying out of the reach of U.S. law.

The answer to that question should be an emphatic “no” too, even if the current iterations of PIPA and SOPA aren’t the right way to address foreign sites. As illustrated by a recent indictment of Hong Kong-based Megaupload, U.S. law already extends to much of the global Internet. And although it makes sense to try to cut off the funding for foreign piracy hotbeds, lawmakers need to tailor the legislation narrowly to that target. The original SOPA was so broad, it would have let rights holders go after Facebook, Twitter and other U.S. sites where users occasionally post links to infringing material.

These problems can be solved, and the bills’ authors have acknowledged that their proposals need more work. If this week’s protests produce a consensus approach to the problem of foreign piracy, then it will be a victory for grass-roots activism. But if tech companies convince lawmakers and millions of Web users that any solution is worse than the problem, then it will simply be a victory for a powerful new form of advocacy by the companies best able to plant their message in the echo chamber of the Net.