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Online Piracy Debate Continues to Divide Washington

Organizations like the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) actively lobbied for passage of SOPA and PIPA. Since the 1990s, Congress has passed several anti-piracy laws to protect industries challenged by evolving digital methods of distribution.

For instance, the Digital Millennium Copyright Act of 1998 protects companies from charges of “contributory infringement” on content uploaded by users, so long as the company follows a procedure that concludes in the removal of infringing content.

Without protection from contributory infringement, sites with user-generated content would not have come into existence because the burden of reviewing all user-submitted content would have been impossible for these companies to manage. Major tech companies like YouTube, Google, and Twitter opposed SOPA and PIPA because of the changes in the liability rules around infringement.

After learning its lesson from the battle over anti-piracy legislation, the tech industry has expanded its lobbying efforts in Washington. Consumer Watchdog reported that Facebook and Google both substantially increased their lobbying spending in 2012. Last year, Google hired former Rep. Susan Molinari to replace Google’s first full-time lobbyist, Alan Davidson, a former computer scientist.

In spite of lacking any previous experience on copyright legislation, former U.S. Senator Chris Dodd became the MPAA’s chairman and CEO in 2011. The MPAA tapped Dodd primarily to figure out how to stop illegal downloads of the movie industry’s products. Under federal law, Dodd faced a two-year ban before he could directly lobby his former colleagues, which ended in January 2013.

Dodd – who admitted his lack of expertise on intellectual property rights to Businessweek – has recently tried to emphasize the common ground between tech companies and Hollywood.

“Hollywood and Silicon Valley have more in common than most people realize or are willing to acknowledge,” Dodd told a group of industry executives and journalists at the Variety Content Protection Summit last December. “The future isn’t about choosing between protecting free speech or protecting intellectual property—it is about protecting both.”

Despite the difficulty to quantify how much online piracy actually hurts the content industry, MPAA and other industry organizations often cite figures from a 2007 study by the Institute for Policy Innovation. The study estimated that piracy costs the content industry – a group that includes the film, music, and other industries that rely on intellectual property protection –  $58 billion a year.  In contrast, Julian Sanchez, a research fellow at the Cato Institute specializing in privacy and technology issues, believes the cost to the film industry is less than $500 million after removing the double-counted figures.

Historically, the content industry has enjoyed closer ties to Democrats than to Republicans – as revealed by the quick withdrawal of support from Republican members of Congress co-sponsoring the anti-piracy bills after the online protests. But Republicans have not deviated significantly from the typical lobbyist-driven position on intellectual property common on both sides of the aisle.

The Republican Study Committee, a caucus of conservative Republicans within the House, recently fired a young staffer who had written a proposal to reform U.S. copyright law. The policy brief laid out a list of reforms, including reducing the term of copyright protection and curbing statutory damages. The RSC retracted the document within 24 hours and apologized for publishing it “without adequate review.” According to the Washington Examiner, the RSC decided to pull the memo after Rep. Marsha Blackburn (R-Tenn.), who has ties to the country music industry in Nashville, strongly objected.

Congress has yet to announce any major moves on anti-piracy legislation in 2013, as lawmakers remain wary to face the Internet community over the issue. Nevertheless, the revolving door between Congress and the content industry has resumed its swinging – exemplified by the House Judiciary Committee recently rehiring an employee who had served as a top lobbyist for the music publishing industry to serve as general counsel to the chairman of the committee, Bob Goodlatte (R-Va.) – an original sponsor of SOPA.

Meanwhile, Rep. Zoe Lofgren (D-Calif.), a major opponent of SOPA, wants to overhaul a computer hacking law that makes it illegal to gain access to computers without authorization. In a post announcing the draft bill on Reddit, Lofgren said the government was able to impose “such disproportionate charges” on Swartz because of the broad scope of the Computer Fraud and Abuse Act of 1986 (CFAA).

"There’s no way to reverse the tragedy of Aaron’s death, but we can work to prevent a repeat of the abuses of power he experienced,” Lofgren wrote in her Reddit post.

Lofgren’s bill, a revision of the CFAA, would specify that violating a company’s terms of service agreement does not constitute criminal hacking under the law. Lofgren plans to title her bill “Aaron’s Law.”