Piracy Bill Opponents Willing to TalkOpposing sides in SOPA/PIPA debate cover the ongoing piracy issue 1/30/2012 12:01:00 AM Eastern
Antipiracy legislation-with bipartisan support and apparent
momentum-has been put on the backburner after pushback from Silicon Valley
succeeded in tabling the bills.
Markham Erickson, executive director of NetCoalition, which has
been battling the PROTECT IP Act (PIPA) and the Stop Online Protection Act (SOPA)
on behalf of members that include Google and Yahoo!, says he is ready to talk
directly with the studios, but he adds that they need to make the first move.
For its part, the Motion Picture Association of America (MPAA),
which supported the anti-piracy bills, says it is willing to talk with anyone that
offers constructive suggestions, and has a willingness to address what they say
is a serious problem.
Michael O'Leary, senior executive VP, global policy and external
affairs for the MPAA took the lead for the studios on the push for antipiracy
legislation, a push he suggests remains key to protecting present and future
In separate interviews, those key players in the PIPA/SOPA opera
that has played out over nearly two years talked with B&C and Multichannel News
last week about what happened, what's next and why it still matters. (MPAA
spokesman Howard Gantman also participated in the MPAA call.)
there any hope for PIPA or SOPA, or do you have to start over?
Michael O'Leary: We want to find a resolution and are
not necessarily wedded to any specific form of that resolution, but we would
like to come up with something that helps us deal with this problem because it
is a very real one. That may not be a great answer, but it is the truth of the
way you go, what are the must-have's in an antipiracy bill?
O'Leary: I am not going to negotiate
specifics of anything in the press. I think we are in a process right now where
we are evaluating the situation and reaching out to people who are interested
in getting something done and I am not sure it serves anybody's purpose to
start issuing ultimatums through the press.
talked to Markham Erickson of NetCoalition and he said he is ready to talk with
your side if you guys make the first call. So, are you willing to reach out?
O'Leary: I think we have been very clear since the middle of last summer
that we are more than willing to sit down and talk to people who have
legitimate concerns and constructive solutions for addressing those concerns
but still addressing the underlying problem of content theft. So, yes.
you launched an ad campaign to continue to push for antipiracy legislation?
Howard Gantman: We haven't. Creative America
launched a campaign, but we don't have a campaign right now. [Creative America
is a group created last fall to drum up rank-and-file support for the bills.
Its members number both creative unions and many of the MPAA member studios,
including NBCU, Sony, Fox, Warner Bros., Viacom and Disney.]
the success of the Web "blackout" protest, did the studios underestimate the
power of the Web?
O'Leary: I think it was certainly
successful in achieving their underlying goal, which was to not do anything
about this problem.
you think the talk of the bills destroying the open Internet was a red herring,
or were there some legitimate issues like the lack of due process?
O'Leary: Specifically, since you raise it, I don't think there is a due
process beef. The due process provisions in this bill are the same ones that apply
in existing law today. I think what you saw here was a very effective campaign
that motivated people through misrepresentation and distortion. I think if you
throw around loaded words like censorship-there is no one that can point to any
part of this bill that equates with censorship. Due process is a part of the
bill. The problem is that it became about the rhetoric and not about the
Our hope as we move forward is that we can set that aside. If
people have legitimate concerns that they can articulate, then we are more than
happy to discuss that. Simply stepping back and saying something is going to
quote-unquote break the Internet is not a substantive discussion that is going
to lead to any type of cogent policy.
number of legislators reversed position and withdrew their support for the
bill. MPAA President Chris Dodd suggested to Fox News that those legislators
should not expect campaign contributions from the association.
Gantman: Senator Dodd was merely making the obvious point that people
support politicians whose views coincide with their own. When politicians take
positions that people disagree with, those people tend not to support those
of the bill say the issue may only boil down to a couple dozens sites and they
are not sure how big the issue is. How big do you think the piracy threat is?
O'Leary: It seems that argument presumes that, as an industry, we just
have to accept the fact that a certain number of people are going to steal from
us. They always say the job loss isn't as big as we say it is. Well, at what
point does it become big enough? Do we have to lose any jobs because people are
stealing from us? I don't know any other industry in the United States that
when they go to the government and ask them to enforce the laws to stop people
from stealing from them, they're faced with this type of response. I think it
is nonsensical to say you have to absorb a certain amount of loss. That is not
the way our system works.
obviously you don't feel there is not enough protection in current law or
O'Leary: No, and by stopping these bills dead in their tracks rather than
debating them it is furthering a safe haven overseas. Criminals are smart; they
adapt. When you enforce against them in one area they move into another where
enforcement isn't as strong. This is clearly a very profitable business because
you look at the gentleman running megaupload who was indicted last week. He was
living a life of affluence that most people in the U.S. can't comprehend, and
it was built specifically on the back of criminal activity and piracy. So, the
notion that there is not harm or it's not worthy of attention is just not borne
out by the facts.
if the SOPA and PIPA legislation had been in place?
O'Leary: His access to the U.S. would have been cut off years ago. What is
happening to him now is a criminal investigation, which frankly based on his
conduct that probably was warranted. But criminal investigations take a long
time to build a case and an enormous amount of resources. So, over the pendency
of that investigation which probably took 3 or 4 years, he continued to steal
and profit from it.
What we were trying to do is create a new tool that would
basically say to criminals around the world, 'You can go ahead and be a
criminal, but you are not going to tap the U.S. market.' It would have been an
effective tool that could have cut him off three or four years ago.
what is the impact of not having passed these bills on industry and the
O'Leary: I think a couple of things will happen. One is that consumers
will continue to be exposed to fraudulent goods, not just movies and music, but
fraudulent consumer products, like drugs and medicine that impact safety. So,
the consumer will continue to be exposed to these. A black market overseas will
be perpetuated. And the U.S. will have taken a step back in terms of being a
world leader in protecting intellectual property, which is the lifeblood of
most economies. And this is at a time with unemployment at an all-time high and
a global recession. Inaction on protecting intellectual property sends a very
strong signal to the rest of the world that for the first time, the United
States has not stepped up and met a very serious challenge, and that hurts our
overall ability to have strong intellectual property protections.
Talking specifically about TV and video, as content goes over the
top, doesn't that make piracy protection that much more crucial?
O'Leary: Absolutely. Our industries are moving into that space rapidly.
They are developing business models to get into that space. But if that space
is built on a foundation that it is OK to steal, it is never going to reach the
true promise that it holds. Historically, the U.S. has always favored legitimacy
over theft. What you run the risk of happening here if you don't put certain
safeguards in place is that you are creating an environment where theft is on
the same playing field as a legitimate endeavor, and that can't possibly work.
companies are putting their TV everywhere even without that legislation. Was
this in anticipation of getting these bills, or do they feel they have to get
it out there now, regardless?
O'Leary: I think what you are seeing is they are responding to consumer
demand. At the same time, I don't think it is too much to ask the government to
make sure that this new platform isn't overrun by criminal activity. So, they
are continuing to respond, but at the same time we are sending a very strong
message to people that will steal [content] that it is OK. At some point, those
two things will converge and start to have direct impact on our ability to
produce and explore new platforms.
why wouldn't Google be just as interested in preserving content since it
clearly has TV aspirations beyond homemade kitten videos?
That is better asked for them, but I think they profit an awful
lot from the current environment with advertising money and people who pay to
move up in the search rankings. They certainly have a business model that they
profit from. In terms of why they don't want to deal with content theft, that
is a question you will have to ask them.
is MPAA's next move on piracy legislation?
O'Leary: We are reevaluating the situation and trying to assess who in
this current environment is interested in trying to get something done. And
based on all those factors, we hope we will be able to move forward and start
to build a consensus. There seems to be a widespread agreement that this is a
legitimate problem that needs to be addressed. We want to build on that, find
the parties interested in dealing with that, and find a solution. If you step
back, it is obviously a setback for American creativity and jobs, but looking
at the positive, you are getting recognition that this problem is broad and
needs to be addressed.
you ready to declare victory over SOPA and PIPA?
We have read in the papers today that the [Motion Picture Association of
America] has launched a $3 million national ad campaign [the MPAA says the
campaign is not their but Creative America's, a group that includes MPAA's
major studio members plus unions] to promote SOPA and PIPA. So, I don't believe
that the other side is ready for us to declare victory but is going to continue
to push. And I think that is unfortunate because we remain willing to talk to
the other side as partners in how we try to deal with the issue of illegal
content on the Internet.
The other side appears to want to double down and take a run at
this, and that will keep the issue going and we will have to continue to work
to educate members about why we think the proposals as currently drafted go way
President Chris Dodd has suggested he wanted to get together with your
said he wanted the White House to convene a summit and the White House has said
they are not interested in doing that. We have already provided MPAA and
members our position and we are ready to engage with [them] if they are willing
to engage to talk about that, and hopefully they are willing to do that. I
think we would be very willing to sit down and try to get a handle on what is
at stake, defining the scope of the problem and how many Websites we're talking
about, where the theft is occurring, and discussing whether there are private
sector solutions as well as the possibility of federal legislative activity.
if Chris Dodd calls you are willing to talk?
you willing to make the first move?
The other side is the one seeking to push legislation. We're happy
to meet with them and they know where to reach us, so hopefully we will be in
discussions before too long.
talk about defining the scope of the problem. Don't you agree that piracy is a
piracy is obviously a problem; how big the problem is has never been defined by
an independent body. The government accounting office, which investigates
issues for the Congress, put out a report about a year and a half ago saying
that the MPAA's piracy numbers were overblown and unverifiable.
The MPAA's Website says nine out of 10 instances of movies that
are pirated and put on the Internet are being stolen out of movie theaters from
people who are camcording them and that there are only 19 sites that they are concerned
about. It depends on what you define as a huge problem. Nineteen sites is a
fairly small part of the World Wide Web. And if nine out of 10 instances of
piracy are happening in the movie theaters, maybe there [are] solutions in
terms of putting more responsibility on theaters to be proactive that could
stop the piracy from happening in the first place.
We ought to have a data-driven process to look at how big a
problem piracy is and how we work as partners with the content industry to
tackle that issue.
would your argument be that there should be no new legislation until you can
define the scope of the problem?
think that is an argument that policymakers might want to make. Whether you are
talking about clean air legislation or clean water legislation, ideally in
Washington you would want no dirty air and no dirty water and pristine rivers
and no illegal activity. You have to make determinations about the scope of the
problem to understand that regulation that you impose that is going to cost
companies and may deprive some people of some civil liberties and have some
impact on the First Amendment and free speech. Those sort of collateral hits
might be worth it if the problem is significantly large enough. But if you
don't have the discussion in the first place, how would anyone expect a
policymaker to make an informed choice about how far to go on remedies?
you back the OPEN (Online Protection and Enforcement of Digital Trade) Act?
are supportive because it is a follow-the-money approach. But even that should
be subject to careful review, be the subject of hearings, have input from all
stakeholders and consumers and look for unintentional consequences and ways to
improve it. The sponsors of the bill-lead sponsor is Darrell Issa (R-Calif.)-have
said the same thing. That is really not how SOPA and PIPA were handled.
shouldn't cable operators support this bill? Why is it not in their interests?
of them have. Comcast, one of the biggest ISPs, which is also one of the
biggest content providers with the merger with NBCU, has been supportive. I
represent edge-based Internet companies and technologies companies and the
calculation that [cable companies] make is hard to calibrate because they have
a different business model. But I know that in speaking to many of the people
within ISPs, they thought PIPA and SOPA proposals were not workable and would
cause more harm than good. That is not what the Washington people ended up
saying. But I think it gives those companies a chance to step back, if we are
indeed hitting a pause button, and see if there is a better way forward.
the rhetoric get a little too heated during this process?
but at the same time this was being driven, there was a vote that was going to
happen in the Senate tomorrow [on Jan. 24], and both sides wanted to get the
attention of Senators and that artificial timing was really unfortunate because
it did cause people to be very vigorous in how they spoke about these issues.
We are glad [Majority Leader] Senator Harry Reid [D-Nev.] has withdrawn the
motion to proceed to a vote and I think that gives us a chance to have more
productive conversations with the other side about what works and doesn't work.
know some supporters of the bills in Congress took umbrage to being
characterized as Internet killers. Do you really think that is what these bills
proposals would have fundamentally changed the way the Internet works and how
they experience it. How you want to characterize that I will leave to others.
Our organization never said they were Internet killers. But we did say that
both bills would impose a significant drag on innovation, be a dramatic
reversal of federal policy in terms of regulating the Internet and harm free
speech. Those issues we thought were very serious. But the "bumper sticker"
piece to that is better left to other people.
If ISPs had to get a court order, why
did you have such a big problem with domain name filtering?
didn't have to get a court order. Having a court order is fundamental and
should be in any bill. But the domain name blocking in SOPA and PIPA was most
vigorously argued against by security experts who have no affiliation with our
organization, and who said those proposals would impose significant
cybersecurity concerns on our critical infrastructure. Ultimately, even the
sponsors of the bill agreed to drop those provisions because of the
you involved in the Web blackout protest?
company made their own decision to participate.
you surprised at how successful it was?
am. I've never seen anything like it. Chris Dodd said he thought it was an
unfortunate day in Washington and how things will be discussed going forward. I
thought exactly the opposite. I thought this was a terrific day for citizen
Democracy and that exactly what you want to see is people contacting members of
Congress if they think something is going to hurt them.
were so many unions supportive of SOPA and PIPA?
don't know, but about a week ago the authors of Freakonomics said that they believed that the correlation between
piracy and jobs is likely not accurate. It becomes classic Washington rhetoric
to try to talk about jobs or the person who is the key grip or sweeping the
floors. If that were what was mainly motivating the content community then
Viacom's CEO would not have made $78 million last year. I'm not saying he
shouldn't make whatever salary his board is willing to pay him. But this is
about improving the bottom lines of the companies, and Congress has to figure
out whether the public policy goals are in synch with the private sector goals
of each company offering their different approaches.
about the argument that Google and Yahoo! are just trying to protect profits
from ads on pirate sites?
is absolutely ridiculous. There is just no amount of money that is even a blip
in terms of revenue that the companies care about where they are making money
off illegal content. They don't want to make money from illegal advertisements.
They all have policies that reflect that. That is one of the most cynical and
ridiculous arguments in this whole business.
Google has also defended itself as showing the Internet as it is, pirate warts
and all, and not as some would wish it to be. Is that an argument for
displaying pirate sites?
is almost no way to answer that kind of question. Google takes down illegal
content every day. They are not interested in showing pirates or piracy. The
question is whether a solution that requires them to disappear an entire domain
name, including both lawful content and unlawful content, is a reasonable
approach, and Google and others have argued that it is not. You can't
"disappear" an entire domain name and claim that you are being representative
of what's on the World Wide Web.
There are more solutions that would allow you to take off the
illegal content while preserving the lawful content. In fact, that is what the
Digital Millennium Copyright Act does today. There are more effective, narrowly
tailored ways to get out the unlawful content without disturbing the lawful
do you think that piracy is already taken care of by current legislation?
all want to encourage a world with more and more lawful choices for consumers
and less and less unlawful ones. I'm not sure we ever get to a world where
there is zero unlawful content. But I think to improve the situation requires
both content creators to make a better product available to consumers in ways
that make sense to them. For instance, we have seen the recording industry
shift in that space in ways that now allow them to make money from individual
song downloads. It may be the case that the movie industry is going to have to
look at different policies. Today they say rent a video and it expires after 24
hours and maybe that is not the most consumer-friendly way to approach that
They are going to have to look at their issues. But we are going
to have to look at addressing some illegal content on the Internet. And that
may require both legislative action and private sector partnership. I don't
think there is one solution.
I think the biggest issue from my perspective is if you look
historically, the MPAA and its members have always acted toward new
technologies by first trying to outlaw them. They tried to outlaw cable TV,
home video players and the iPod. Ironically, those three platforms are
responsible for a major portion of the content industry's revenue. This is a
bit of an overstatement, but instead of trying to outlaw the Internet, look at
it as a potential means of worldwide distribution to larger and larger
audiences that enable them to boost the bottom line and regenerate some of the
old catalog. It is a win-win for everybody. And it is inevitable that they
won't be able to ban the technology but, working with the tech companies, can
exploit it in a way that is positive for everybody.
I think we are moving away from a passive, one-way experience to
interactive content that will provide incredible opportunities for the content
community. There are so many positive ways to look at what is happening. That
should be the primary focus. And in terms of dealing with the unlawful content,
we want to work with them to deal with that, too.
would think that with video moving online, and Google having aspirations in
that space beyond home videos, Web companies should be interested in fighting
online video piracy.
We struggled to get licenses from the content creators and hopefully we will
get to a point where they have a better ability to cut deals to distribute
is the takeaway from all that has happened with SOPA and PIPA in the past few
Last week marks the end of a backroom deal that gets jammed
through Congress without people paying attention. That is where we were headed.
If you remember, even in the Senate Judiciary Committee, Chairman Patrick Leahy
(D-Vt.) held the markup in private off the Senate floor where the public was
not allowed to view that process. I think there was some sense on their side
that if they promoted it in this way they could sort of sneak it by. Maybe, I
don't know, but that is how it was viewed by many who were watching the
process. I think the end of that era is probably highlighted by what happened
two weeks ago.
We were an industry being asked to take up a significant
regulatory burden, but we were not being invited as partners to discuss what is
workable, what is effective and what's not.
You had this amazing process where one industry was saying, let's
impose regulations on another industry without bringing the other industry in
to meet as true partners. We thought that was curious. We wanted to be partners
in trying to figure out how to deal with the problem of illegal activity and I
think this process gives us a chance to do that.
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