November 16, 2011

Wyden SOPA Statement Warns of Severe Repercussions to a Free and Open Internet if Bills are Passed

Statement for the record for House Judiciary Committee’s hearing on SOPA Urges Committee to Consider the Impact Infringement Remedies Will Have on the Internet

Washington, D.C.As the House Judiciary Committee held a hearing for the Stop Online Piracy Act (SOPA), U.S. Senator Ron Wyden (D-Ore.) a former member of the House of Representatives, included a statement into the hearing record warning of the dangers SOPA will pose to a free and open Internet. Wyden has put a hold on similar legislation in the Senate known as PROTECT IP and has vowed to “fight this every step of the way.”

“I would like to take this opportunity to commend Chairman Smith and Ranking Member Conyers for holding this hearing.  While I would have liked to see a more diverse range of voices included at today’s table, I appreciate the opportunity to share my views on this important subject.

While some would like to paint this issue as a simple matter of being for or against intellectual property, that would be a mistake.

Believing that a free and open Internet is worth fighting to protect does not mean that we aren’t concerned about copyright infringement or that we are somehow oblivious to the fact that unscrupulous foreign suppliers are using the net to traffic counterfeit and illegal goods.  They are and Congress and this committee are right to be considering remedies to stop them and to protect the hard work of our creative industries.

Rather, those of us who value the Internet’s growing role in our society recognize that any government intervention in the online ecosystem that is the Internet can and will have a ripple effect on more than just its bad actors.  Interfering in the Domain Name System (DNS) for example would undermine the net’s structure and harm cybersecurity efforts.  Authorizing a private right of action, for example, wouldn’t just allow rights holders to use the courts to protect their intellectual property.  Companies could also abuse such authority to protect out-dated business models by quashing new innovations in their infancy and discouraging less than complimentary speech.    

In other words, the wrong approach to combating infringement could fundamentally change the Internet as we know it, moving us towards a world where transactions are less secure, ideas are less accessible and starting a website wouldn’t be an option for anyone who couldn’t afford a lawyer.

The Internet has become an integral part of our everyday lives precisely because it has been an open-to-all land of opportunity where entrepreneurs, thinkers and innovators are free to try and fail.  The Internet has changed the way we communicate with each other, learn about the world and conduct business, because instead of picking winners and losers, we created a world where every idea has an opportunity to be heard regardless of where it originates.

As Members of Congress we can now engage with our constituents via online innovations in social media, while a small business in rural Oregon can use the Internet to find customers around the world.  And the Internet isn’t just becoming the global marketplace for goods and services, it is the marketplace of ideas challenging tyranny and championing democracy.  It has made lies harder to sustain, information harder to repress and injustice harder to ignore. 

But while the Internet has become a dependable part of our lives, it is essential that we not take it for granted or make assumptions about a medium that is still taking shape and that few in Congress fully understand.

Moreover, it is important to remember that the Internet we know did not happen by accident. Rather, it grew from a set of principles that we deliberately put into law during a situation not unlike the one before the committee today.  
Over 15 years ago, when Congress first started thinking about Internet regulation the concern was protecting children from pornography.  There were competing ideas and some argued that Congress should simply censor the Internet and use the government to cut off access to objectionable material.  

But a few of us saw value in letting the Internet develop free from corporate or government control.  Instead of having government censor the web, we developed an approach that would empower users and technology to address content concerns on their own.  And we took the opportunity to pass a law that said that neutral parties on the net are not liable for the actions of bad actors.  

That fundamental principle enshrined in Section 230 of the Communications Decency Act both addressed the problem and freed innovators to develop new ideas like YouTube, Facebook, Wikipedia and Twitter.  So now, as we again debate web censorship, let’s ask ourselves: What next generation of innovations won’t be realized if we backtrack on that principal now?

Yes, the Internet needs reasonable laws and bad actors need to be pursued, but the freedoms of billions of individual Internet users should not 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.  And yes, giving moneyed interests a louder voice and a greater ability to determine what that online world will look like would fundamentally alter the Internet which currently treats all voices as equal.

As I have said before, this is not an issue where we should use a bunker-buster bomb when a laser beam would do.  And that is not just my opinion, venture capitalists who fund Internet start-ups, the biggest and smallest actors in the tech community, law professors concerned with speech, Internet technologists, security experts and mainstream and new media have all expressed concerns about the legislation advancing in Congress. 

In writing laws to police the Internet, we need to consider more than how effective a proposed remedy would be at combating infringement, we must also consider the impact proposed remedies will have on everything else online.  This means keeping the following in mind:

1.         Be deliberate.   While rights holders and law enforcement are understandably eager to go after bad actors, we must be mindful of the precedents we set here at home, and around the world. 

2.         Get the scope right.  Narrowly focus law enforcement’s authority on those who are willfully and deliberately breaking the law or infringing on others’ property rights for commercial gain. 

3.         Avoid collateral damage.  Rather than frustrating the architecture of the Internet or establishing a censoring regime, consider instead promoting approaches that empower users and do no harm to the ‘Net.  More simply, fish for tuna without catching dolphins. 

4.         Promote innovation over litigation.  Our efforts should be to protect copyrights and trademarks, not outdated business models.

 Again, I thank the committees for consideration of my views.”