When Congress returns next week, it will take up an ambitious intellectual-property bill that could overhaul how the government fights online theft and ease pressure on the Obama administration to live up to promises made before the 2008 election. Recording and movie studios couldn’t be happier, but tech giants such as Google, in part citing a need to protect free speech, have pledged to fight the transformative measure.
Yet, in reality, the tech giants’ objections are economic, not ideological. And if lawmakers can meliorate that business anxiety, they could cleave the corporations from their traditional allies at nonprofits and think tanks, straining a traditional Washington alliance.
The Protect IP Act aims to crack down on websites that facilitate online piracy—a drain on entertainment companies whose high-priced products bounce around the Internet for next to nothing, generating revenue for criminals (often based overseas) who sell counterfeit versions online. The legislation from Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., expands the Justice Department’s power to take action against infringing websites. With an OK from the courts, law enforcement could instruct search engines and domain-name providers to make the infringing sites invisible to Internet users and redirect them to a page explaining why the content is inaccessible. Ad networks and payment processors would also be forced to stop supporting those sites.
Fighting piracy is a rare issue with bipartisan support on Capitol Hill; the U.S. Chamber of Commerce and the powerful recording and movie lobbies also back the bill. But the legislation is hardly a sure thing. A similar proposal failed to pass the last Congress, and a particularly effective coalition of opponents—Google and other major Internet interests allied with outspoken civil-libertarian groups—has emerged this year to stall the process.
NetCoalition, including Google and other technology corporations, opposes the Senate version for fear it could shift the cost of anti-piracy enforcement from the government to Internet companies. The behemoth with the most experience and influence in Washington, Google can leverage its powerful lobbying infrastructure—it added 10 firms just this year—to change minds on the Hill.
Meanwhile, Google has collected a vast network of allies among nonprofits and think tanks, to which it doles out thousands of dollars in donations every year to help push its agenda in Washington. They are joined by civil-liberties groups, such as the Electronic Frontier Foundation and Don’t Censor the Net, that have helped to frame Google’s vantage point as a First Amendment issue. Civil libertarians say that the bill could chill free speech by giving authorities power to remove websites without giving owners a chance to fight back.
Not surprisingly, the tech companies have borrowed the First Amendment rhetoric. Google Chairman Eric Schmidt warned in May that such laws could set a disastrous precedent not only for search engines but for freedom of speech in general. When Sen. Ron Wyden, D-Ore., announced he would place a hold on the Senate bill, he also cited similar arguments. “I am not willing to muzzle speech and stifle innovation and economic growth to achieve this objective,” Wyden said in a statement.
Given the strength of this pro-technology, anticensorship platform, the bill might seem dead on arrival in the House. But congressional aides speaking on condition of anonymity say they think House members can win over the tech companies by revising the bill to drive a wedge between the corporations and their libertarian allies. If Google switched sides, it would realign its powerful lobbying base behind the bill, leaving the principled opponents out in the cold.
This flip-flop wouldn’t be hard to achieve; the corporate grievances are relatively narrow. For starters, tech firms say that the Senate draft could endanger the safe harbors they have in other copyright laws, which give businesses that fail to obey statutes legal impunity as long as they’ve made a good-faith effort to comply. Second, the legislation allows copyright holders to sue technology companies that link to pirated material. Internet companies assert that enforcement should come from the Justice Department, not copyright owners. And third, domain-name filtering—the act of redirecting users away from the infringing material—could be a major problem for the stability of the Web because the technology that enables redirection is incompatible with emerging security systems that prevent hacking.
Congressional aides say that when House Judiciary Committee Chairman Bob Goodlatte, R-Va., introduces his proposal this fall, tech-industry complaints could vanish. “If he can get that right and win the tech sector, it could move this year or next,” a tech aide to a House Judiciary member said.
Tech allies agree that tweaks could make the legislation supportable. “The best solution to Protect IP’s deficiencies would be for Congress to ignore the Senate bill altogether,” Larry Downes, an industry consultant, wrote in a recent op-ed. “But as the House prepares its own version of the law, [pro-tech changes] would greatly reduce unnecessary risks to the Internet ecosystem.”
If Google gets what it wants, don’t expect it to hold out for the sake of its friends in the free-speech community. Markham Erickson, director of federal policy at NetCoalition, the advocacy group for Google and Yahoo, said he could imagine a situation in which his grievances are resolved but those of civil libertarians aren’t. “The First Amendment questions aren’t issues that affect us directly from a policy perspective,” he said. “If we reach a point where our concerns are addressed but theirs aren’t, so it goes.”
This article appears in the Sep. 3, 2011, edition of National Journal.