I wanted to write about SOPA this week and thought Chris Hayes had a very nice segment on it. Since MSNBC doesn’t provide transcripts of his show I had to provide my own - which crowded out the blogging time. I’ll do a SOPA post next week, referencing this as needed.
I did my best to get what everyone said correct and omitted most of the verbal padding (“you know?”, “right?” etc). At times there was cross talk or something was hard to make out, but obviously any spelling, grammatical or other errors ultimately belong solely with the host of the show. Please send any complaints or requests for correction to upwithchris (at) msnbc (dot) com, or to Twitter handles @upwithchris or @chrislhayes. Thank you.
[HAYES]: Our story of the week: the most important bill in Congress you may have never heard of. Right now on Capitol Hill some of America’s biggest industries are waging an epic battle over the future of the Internet and the future of American commerce with big money and long-lasting implications. The founder of Google has said of this legislative issue, “it would put us on a par with the most oppressive nations in the world,” while dozens of international human rights organizations wrote that it “sends an unequivocal message to other nations that it is acceptable to censor speech on the global Internet, and the circumvention technology that they use to access information under oppressive Internet regimes would be outlawed.” Prominent Constitutional law scholar Lawrence Tribe says the legislation “will lead to the silencing of a vast swath of fully protected speech, and to the shutdown of sites that have not themselves violated any copyright or trademark laws.”
Large tech companies like Google, Facebook eBay, and Yahoo are so opposed to the legislation there is even talk of shutting down their sites for a day as an act of protest, and the battle lines that have been drawn confound almost every traditional political category. On the side in favor of this legislation you have Al Franken and John Conyers lined up with Tea Party Republicans, the Chamber of Commerce, and the AFL-CIO; while opposing the legislation you have Nancy Pelosi, Michele Bachmann and Justin Bieber.
And what is perhaps most remarkable is that while this epic battle wages, while money pours into lobbying and advocating, most Americans have absolutely no idea it is going on. A report from Media Matters surveyed all the major networks’ and cable networks’ prime time coverage - this one included - and found exactly zero coverage of the legislation with the exception of a single segment on CNN.
As it turns out the company I work for, NBC Universal, is not at all neutral in this legislative battle. They are very, very supportive of the House’s Stop Online Piracy Act [SOPA] and its Senate counterpart. In fact, we will be hearing from a representative from NBC in just a moment, but in the meantime you can get a sense of how my employer feels from this mug that was sitting in my office kitchen. “Steal this mug,” it says cheekily, “but not our content.”
And stealing, or more precisely piracy, is the problem SOPA says it attempts to solve. Now, as a copyright holder myself, as someone who creates intellectual properties, such as it is, for a living, I’m not in the “information needs to be free” techno-utopian camp. I think people should be paid for their work, so I understand sites like Pirate Bay, where people can go and download the latest films and TV shows for free, are a big issue.
The problem is that sites devoted to massive file sharing of copyrighted works are smart enough to headquarter themselves in countries with loose jurisdictions. So the solution this legislation proposes is effectively to make third party intermediaries - search engines, user-generated sites and Internet service providers - the enforcers of copyright.
Facebook and Google and Twitter would have to zealously police copyright infringements or face legal sanction from copyright holders, up to and including being shut down and having their access to credit card processing companies cut off.
Think about it this way: What the US government was able to do to Wikileaks private parties would be able to do to each other with the help of the courts. And not just that. Individuals who stream copyrighted material could face criminal prosecution and prison time. And if you don’t think this applies to you at all, think again.
You ever upload a YouTube video with a song playing in the background or a video of your kids’ birthday party where you sing “Happy Birthday”?
[Video of home movie with people singing “Happy Birthday”]
That right there with the squirming kids and mouse costume is in fact a copyright violation. The copyright for “Happy Birthday” is fiercely protected. That’s why you rarely hear it sung in movies, why we can only play five seconds, and there’s much, much more where that came from.
Now, under the legislation it is very unlikely that that family there would be prosecuted. The surface problem may be unlicensed copying but the deeper problem is that computers and the Internet are one big copyright infringement machine. Files can be copied, downloaded and distributed, and the technology continues to outpace attempts to squash it. The technical infrastructure of the Internet is complicated, and sometimes its democratizing potential can be vastly oversold.
But the fact remains that over the past ten years, as everything else in American life seems to push towards more concentrated power in fewer hands, the Internet has been the one development mitigating against that. It is disruptive and empowering in a way few things are in 21st century American life, and it won’t stay that way on its own.
The history of technology, dating back to when we had literally thousands of movie studios in this country and do-it-yourself radio stations, is that what starts out as disruptive and democratic becomes concentrated and co-opted. As long as there are sites that empower users to create and re-purpose and even copy, there will be some piracy.
The question is, if that’s the cost, is it still worth it? There’s been a lot of news on SOPA this weekend. The House Oversight and Government Reform Committee is slated to hold a hearing on SOPA Wednesday, but Republican chairman Darryl Issa decided to postpone it, saying that he didn’t want flawed legislation to be taken up by the House. Also the bill’s author, Republican Lamar Smith, decided not to include one of the most controversial provisions which would have allowed essentially private parties to get the government to block sites using technical means, and yesterday there was some pushback against SOPA from the White House, as they released this statement on their blog:
“Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small.”
Here’s a response from Rupert Murdoch that he sent out as a tweet: “So Obama has thrown in his lot with Silicon Valley paymasters who threaten all software creators with piracy. Plain thievery.”
All right, right now I could like to bring in Alexis Ohanian [OHANIAN] who is the co-founder of Reddit.com; and Richard Cotton [COTTON], Executive Vice President and general counsel for NBCUniversal. Thank you for joining us.
[COTTON] Glad to be here, Chris.
[HAYES] Richard, you have been working on this issue for quite a while, I mean, in Internet terms ([COTTON]: yes). I want you to explain, and you’re coming from a different place than I am I think, but I want you to explain what do you see as the core issue? Particularly because we have legislation right now, the DMCA, Digital Millennium Copyright Act, that does provide some protections for copyright holders. YouTube has to have an employee - right? - whose job it is to supervise copyright infringement. Something that’s put up that’s a copyright infringement, that person is contacted, they have to take it down, if not they can face sanction. What is is about the current regime that you think is insufficient that necessitates new legislation?
[COTTON] So let’s take a big step back. What is it that we’re talking about? We’re talking about jobs. We’re talking about web sites that are wholesale, and I repeat the word wholesale devoted, to theft, to stealing content that is the production of our creative industries, distributing illegal counterfeit goods that are produced by iconic US brands who have devoted themselves to researching and producing innovative products. These sites are exclusively that this legislation is devoted to outside the United States. So what this legislation is addressing are web sites, as I say, wholesale devoted to illegal activities that if they were in the United States would be subject to criminal prosecution and to shutdown. This legislation would not effect a single site in the United States. So to mention a US site effected by this legislation is wrong, and it is totally wrong to say that a single post or a small amount of legitimate activity would be threatened by this legislation. So the difficulty with the policy debate is that we have to separate out what the legislation actually does and what is an extraordinary amount of disinformation that has been distributed about the…
[HAYES] Sure, but in terms of what the legislation actually does, I mean, saying this wouldn’t effect a single US site, there are, Alexis you run a US site and there are all sorts of people that run, there are a bunch of companies that run US sites that say: Of course this would effect us. Part of this…
[COTTON] But Chris, seriously, that is wrong, and the problem with this debate is that this legislation…
[HAYES] So they’re making it up?
[COTTON] Yes, this legislation…
[HAYES] But then why are they making it up?
[COTTON] This legislation is devoted exclusively to foreign sites. That…look at the legislation. It is devoted to foreign sites. Saying that it would effect a US site is categorically 100% wrong.
[HAYES] Alexis, I want you to respond to that since you run a US site and you clearly disagree with Mr. Cotton.
[OHANIAN] Yes, what troubles me is that for instance the anti-circumvention policies would lump a site like Reddit, really any site where users can post content that could potentially deemed illegal if, say, it is instructing someone as to how to get around some of these blocking…
[COTTON] That is simply wrong
[OHANIAN] …and furthermore the bigger problem I have here is that this legislation will not only break the Internet but it won’t even work to curb piracy. I’m a businessman, I’m an entrepreneur, my best interest as someone who’s working on a book to…who wants to protect copyright is to come up with a solution that actually works, and I believe that innovation not legislation is the solution.
[HAYES] I want you to pursue this, because I have read some legislation, I have been through the manager’s amendment which came out of the House. I’ve read interpretation by Harvard Law professors…
[COTTON] But if you’ve read the legislation you know it applies only to foreign web sites.
[HAYES] No, that’s not true, because…
[COTTON] That is true, that’s what it applies to.
[HAYES] But, so you’re saying that there is…when you say you’re going to cut off the DNS blocking or you can cut off MasterCard - right? - to a certain site, right?
[COTTON] After a judge has ruled that it is wholesale devoted to illegal activity. Only wholesale devoted to illegal activity and outside the United States.
[HAYES] But, OK, if that is the case, if your interpretation of the law - and I have read this legislation and I have read law professors writing about this legislation - if that is the case…
[COTTON] That is what the law says.
[HAYES] If that is the case, what is the nature of the massive, what is the goal of the disinformation campaign that unites all of the people I have cited, and Google and Facebook, and all of these companies that are, that might have domestic sites that are located in the US like Reddit, what is Alexis’ motivation to lie about this to get this stopped? I just don’t understand. There’s this contention about what actually the interpretation of the law provides. You’re saying it’s clear as day, it doesn’t apply to US sites. If that’s the case why is everybody wasting their time? It just makes no sense to me.
[COTTON] Well, I do think what lies behind it is, there is a policy disagreement, and the question, the big issue here is in fact about the rule of law on the Internet. The Internet is very young. It has grown up with a certain ethos that literally anything goes. And over time you cannot have something that is that is the pillar of 21st society be just rampant with lawless activity. And so what we’re, what the accurate policy discussion is how do you actually go about reducing the amount of illegal activity on the Internet. And what I would say is that there is a philosophical disagreement. The question is for a site that is wholesale devoted to illegal activity, should we allow easy access to those sites? And what I would say to you is, when they’re outside the United States and not subject to our criminal enforcement, we have to use technological tools. And those technological tools do involve, as you said, trying to cut off financial support to sites that are wholesale devoted to illegal activity, and trying to make it difficult to access sites outside the United States that are wholesale devoted to illegal activity.
[HAYES] And I think the question is, is making the change to the architecture to the Internet to prevent what you’re saying, what are the consequences of that architectural change? I want to get Alexis’ response to that right after we take this break.
[HAYES] As you can tell from our program here, this is a very hotly disputed piece of legislation. The White House has had some concern about it. Richard Cotton here from NBC and Alexis Ohanian from Reddit. Alexis, I want you to answer that question: Why…are you misinformed? Why are you…what is your concern about the legislation? If as Mr. Cotton says it only applies to foreign sites?
[OHANIAN] Yes, well, I first want to make a note. The Internet is not a lawless place. The DMCA has been used, has been working, in fact it’s been abused in certain instances where Warner Brothers for instance issued takedowns for files it never even saw. But what we’re talking about with this current legislation, with Protect IP and with SOPA, is the equivalent of, it’s the equivalent of being angry and trying to take action against Ford just because a Mustang was used in a bank robbery. [Taps desk on each word for emphasis] This is not the proper course for dealing with piracy and it won’t even solve the problem.
[HAYES] Why won’t it solve the problem? Because this is…there’s a bunch of arguments that people against SOPA make, right? And one of them is, there’s different levels at which the argument happens. The pragmatic argument is, OK, fine, we agree. And I think I’m just talking for myself here, it is a problem that there are web sites where you can go and download these things. That’s a problem.
[HAYES] They say it won’t solve the problem. Why will it not solve the problem?
[OHANIAN] Piracy is a service problem. Companies, a very successful game company called Valve solved the problem in one of the most notoriously bad markets ever: Russia. By offering a service that was more valuable to people than piracy. It is a service problem.
[HAYES] What do you mean a service problem? I don’t even understand that.
[OHANIAN] It is simply because pirates can deliver something easier than you could get it otherwise. When you have to wait three months to get access to something, when there is, when there are barriers to getting the information, to getting the content you want, people will go through other means. But if you can provide a service that is actually better you can win with business. And as an entrepreneur I see piracy as an opportunity.
[HAYES] But let me respond to that quickly because people make that argument, and that argument seems dubious to me for this reason: In the era of…when file sharing first exploded with college dorms downloading, I think there was a case to be made that a lot of what was happening was convenience, right? It was, I don’t want to buy CDs and burn them, and I am just sitting here with a high speed connection, and I can get it. But what has happened since then with Netflix and iTunes and all these things is that you can get most of what you want on the Internet, right? That convenience aspect to me seems greatly reduced in a world in which we do have Hulu, so I think there’s been some innovation on the part of big media companies, right? You can watch “Lazy Sunday,” the iconic Saturday Night Live video that was downloaded, that was viewed seven million times on YouTube, which is what I think is what precipitated your interest in this topic.
[COTTON] Yes. Correct.
[HAYES] You can now watch it on Hulu, and it’s, and so that convenience argument seems to be a little specious. Isn’t it a very different terrain right now?
[COTTON] And wholesale thievery will undercut the very innovation you’re talking about, Chris.
[HAYES] (To [OHANIAN]) Continue.
[OHANIAN] Actually, to go back to the earlier point. What scares me most about this legislation is that whatever they do is going to be circumvented anyway. And in fact the State Department right now is giving people the same tools that would be used to circumvent dictatorial regimes in places like China. The tools that people are using right now…
[HAYES] The technical tools, you’re saying, to get around DNS blocking…
[OHANIAN] …to get around DNS blocking in a country like China would be used in this exact same instance to circumvent this legislation.
[COTTON] Joe [Sestak, [SESTAK]], you wanted to…
[SESTAK] [inaudible] with this cup. You talk about losing jobs here. And yet the Government Accounting Office said last year that they looked at this, and they cannot substantiate any evidence that this has had an impact in jobs. In fact, the industry, the media industry, the entertainment industry, has grown since 2007 at 1% over the rest of the economy, and most of its profits come greatly overseas where piracy is rampant. In short, this piece of legislation is the right step in the wrong direction. If you look at another bill out there, the OPEN Bill by Issa, which really goes after those web sites overseas through the ITC, where both parties can go before it, for both to have their side listened to, and then strangles the money that goes to them like we did WikiLeaks, that is the way to begin to think about this, not this bill here.
[HAYES] Richard, I want to give you a chance to respond to that, we’re going to take one break, come back, Richard Cotton is going to talk more about this. Hope you’ll join us.
[HAYES] All right, we’re back with Richard Cotton from NBC Universal, Richard I want you to respond to what Alexis was just saying, and what former Congressman Sestak said about alternatives to this, and the efficacy, I mean, this efficacy problem strikes me as fairly fundamental, right? The economists when writing about this issue compared it to the war on drugs, right? That it’s sort of a “squeezing the balloon” problem, and you can, you know, we’ve increased the amount of money we spend on enforcing drugs, but the fact is there’s a demand for it and it just moves around. Particularly given the way the Internet works, is this, why is this going to be effective if other things haven’t been?
[COTTON] All law enforcement is cat-and-mouse. The fact is, the good guys do certain things, the bad guys try to evade it. That’s not a recipe for doing nothing. If you hear about a burglary in your neighborhood, your reaction is not: “Let’s shut down the burglary unit of the police department.” You want the burglary unit to get a little bit better. So all this is, it’s a first step, it’s not a silver bullet. By the way, piracy is never going to go away. But right now it is rampant, it is out of control, the web sites we are talking about are offshore, they’re 100% devoted to illegal activity, they’re undermining our jobs, our economy, our key businesses. What we need to do is to take some steps. In the Netherlands, by the way, there was a court order to block access to The Pirate Bay, traffic to it declined 80%. It didn’t go away, it declined 80%. So the fact is, there is no silver bullet. But we have to start down the path to make it more inconvenient to get stolen content while everyone is trying to make it convenient for consumers to get legitimate content where they want it, when they want it, and how they want it.
[OHANIAN] This analogy of the neighborhood is interesting, because I’m imagining it like we’re about to obliterate the neighborhood that just had a burglary. The tech sector right now…
[COTTON] Sloganeering doesn’t help.
[OHANIAN] …is one of the healthiest parts of the US economy. One of the healthiest parts. And whether it’s a startup like Google or Facebook or whether it’s a startup right now here in New York working on a General Assembly just getting started, they are creating jobs in this economy…
[COTTON] And this legislation would not have a single impact on all of that.
[HAYES] Well, there’s a lot of concern about liability costs
[OHANIAN] As an investor I would not want to touch that.
[COTTON] This legislation specifically says there can be no secondary liability. The only thing that can happen pursuant to a court order is that an ad network, a credit card company, or a search engine, has to respond with respect to a specific site that has been adjudicated by the court…
[HAYES] Right, but if they don’t respond…
[COTTON] To be wholesale, to be wholesale, no, the only thing they have to do is obey the order.
[HAYES] But then that’s an unenforceable provision, if they don’t have to respond then why is this going to solve the problem? If all you, if you raise it and you say: “Google, you have to de-list Pirate Bay and Google says “we’re not going to de-list anything…”
[COTTON] Well, they have to do that. But that’s a specific action required by a specific court order after a judge has made a full finding with all due process protections in place.
[HAYES] I want to return, I’m going to, thank you for your time Richard Cotton, really, I really do appreciate it [reaches across table, shakes Cotton’s hand] and Alexis Ohanian, thank you guys. I think this is a really important issue, it’s not getting enough coverage, I want to return to it in the future and maybe we can have you both back.