Fighting for Digital Rights

The Honorable Ron Wyden
Statement for the Record
U.S. Senate Committee on the Judiciary Hearing
“Targeting Websites Dedicated To Stealing American Intellectual Property”
February 16, 2011

I would like to take this opportunity to commend Chairman Leahy and Ranking Member Grassley for holding this important hearing and giving others and me the opportunity to share our views about this important subject. I recognize that my stand on this issue has put me in conflict with many of my friends on the committee, so I particularly appreciate the opportunity to have my concerns heard.

Make no mistake, I share the committee’s goal of fighting counterfeiting and protecting our creative industries and the good paying jobs they support. The Internet has unquestionably created new opportunities to traffic in counterfeit and illegal goods. The fact that the law has not always kept pace with technology may make it easier for bad actors to exploit new opportunities. Congress is right to want to go after those who are "stealing American intellectual property." However, in writing laws to target the bad actors, Congress cannot afford to forget that the primary uses of the Internet are activities protected by the First Amendment, not civil or criminal violations.

In fact, it is impossible to overestimate the positive effect that the Internet is having on our world. It is revolutionizing the way people engage with one another, the way commerce is conducted and the way citizens organize. Without the Internet, would the democratic uprisings in Tunisia and Egypt have been successful? Would there be real questions about the sustainability of the autocratic regimes in the Middle East and around the world? The Internet has advanced the cause of free speech in ways that I believe would make the nation’s Founding Fathers proud. It has made lies harder to sustain, information harder to repress and injustice harder to ignore. Furthermore, I do not believe that, twenty years ago, any of us could have foreseen the way in which the Internet has transformed the modern day marketplace for new customers, new audiences and new ideas and I doubt anyone can predict exactly where it will take us twenty years from now.

Yes, the Internet needs reasonable laws and bad actors need to be pursued, but the freedoms of billions of individual Internet users cannot be sacrificed in the interest of easing that pursuit. The decisions we make to police the Internet today will also govern how this relatively new medium will continue to develop and shape our world. I objected to last year’s Combating Online Infringement of Copyrights Act not because it might reduce the Internet's ability to facilitate infringement, but because I believe it went about it in a way that would also reduce the Internet's ability to promote democracy, commerce and free speech. We can strike a better balance.

The challenge before us is to develop means to bring bad actors to justice without impinging on the First Amendment and threatening the important architecture and commercial significance of the Internet. Important things to consider:

1. Don’t be hasty. Good public policy is not made on the back of a galloping horse. While both Congress and law enforcement are understandably eager to go after bad actors, both must be mindful of the precedents that they are setting in the U.S. and around the world. The law is best applied when the government’s assertions can be challenged before its actions are approved.

2. Avoid collateral damage. Granting law enforcement broad authority to censor online content has a chilling effect on free speech. Narrowly focus law enforcement’s authority on those who are deliberately breaking the law or infringing on others’ property rights for commercial gain.

3. Preserve Fair Use and secondary liability protections. These safeguards are fundamental to Internet commerce and explain why American companies have been so successful in the global marketplace. The network effect is such a powerful driver of commerce on the Internet that any restriction on links and referrals is a serious barrier to economic activity.

4. Be mindful of how remedies can threaten and shape the integrity or architecture of the Internet. Decisions made today can have lasting results.

5. Avoid taking actions that will empower foreign regimes to censor the Internet. The United States has led the world in promoting free speech; our example cannot be allowed to give authoritarian regimes any excuse to go backwards.

6. Recognize the difference between copyright infringement and counterfeits. A one-size-fits-all approach towards trademarks and copyright may not be appropriate.

There is no question that the introduction and development of the Internet is applying pressure to companies of all shapes and sizes to innovate and bring their business into the 21st century. Change is hard and some industries and governments will undoubtedly try to protect what they have by looking for an “Internet Kill Switch.” Let us keep that in mind as we steam, drive, fly, or click ahead. Our efforts should be to protect copyrights, not outdated business models.

This is also not the first time that, the content industry has raised concerns about a new technology’s threat to their business models. The introduction of recorded music, the photocopier, the VCR, the audio cassette all brought predictions of doom and gloom. Not too long ago, Senator Pete Wilson called his colleagues to join him in fighting the use of Digital Audio Tapes, which he said were “sapping the very life out of the American music industry.”

The challenge of adapting to a new technology is one that American entrepreneurs in this country have always succeeded in overcoming. Now, in the digital age, businesses are again faced with a new test. And while Congress should help industries confront these challenges, I have little doubt that we can find a solution that does not jeopardize speech, innovation and an evolving economy.

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