Prof. Peter S. Menell, University of California-Berkeley School of Law
February 23, 2011

During the past week, revolution in the Middle East and digital copyright enforcement converged.  As widely reported in the press, the dramatic protests that toppled governments in Tunisia and Egypt, and have destabilized other dictatorships, were facilitated in part by social networking technologies.  Senator Ron Wyden (D-Ore.) invoked those developments in opposing the Combating Online Infringement and Counterfeits Act (COICA), draft legislation that would grant public enforcement officials expanded powers to police websites trafficking in copyrighted works without authorization.

Senator Wyden warns that passage of this legislation would reduce the Internet’s ability to promote democracy, commerce, and free speech by legitimating Internet censorship by repressive regimes.  While acknowledging that the Internet has  unquestionably created new opportunities to traffic in counterfeit and illegal goods and that the law has not kept pace with technology, Senator Wyden nonetheless offers no specific proposals.  But further delay in addressing these problems amounts to capitulation.

Senator Wyden’s statement presumes that effective copyright enforcement cannot be accomplished without sacrificing Internet freedom and freedom of expression.  I would like to suggest that this perspective is simplistic and näive.  Rather than promoting democracy and freedom of expression, this viewpoint disserves these fundamental values in the Internet Age.  If freedom of expression includes the freedom to disseminate full-length, recently released motion pictures, novels, and sound recordings with little or no risk of enforcement until after the harm has occurred, then copyright protection cannot exist in any meaningful sense.  And that poses a fundamental threat to democracy, freedom of expression, and creativity.

The Founders of this nation saw both copyright protection and the First Amendment as critical to democracy and freedom of expression.  They understood that copyright protection fosters the growth of knowledge and culture.  It is integral to a robust and free civil society.   Hence, effective enforcement of copyright law – in conjunction with important safety valves such as fair use – promote democracy and free expression by sustaining a healthy and independent press and robust motivation for authors and artists to develop and practice their crafts.

The Internet has vastly expanded the ability for everyone to reach a global audience, but it has also undermined the investments that sustain development of knowledge and cultural resources.  Finding the right balance has proven particularly elusive during the Internet Age.  Private enforcement has not been able to quell Internet piracy.  As the drafters of COICA recognize, public enforcement of copyright law provides a potentially valuable tool in addressing rampant unauthorized distribution of copyrighted works.

Senator Wyden opposes this direction for copyright policy on the ground that expanding government power to block “pirate” websites will embolden dictators to censor free speech on the Internet.  He apparently fears a very slippery slope.  Such a policy, in his view, risks legitimating governments controlling an “Internet Kill Switch.”  But that is a gross exaggeration of the draft legislation and a näive view of dictatorships.  COICA contains significant safeguards that prevent the U.S. government from shutting down social networking platforms like Facebook, Twitter, or Gmail.  And any U.S. government initiative to block these services would indeed foment revolution.   The reality is that repressive governments that want to pull the plug on the Internet have the power to do so (and exercise that power) – just ask Hosni Mubarak.  Desperate dictatorships will engage in desperate measures to control power.  I suspect that Mahmoud Ahmadinejad and Muammar Qaddafi are not paying much attention to U.S. copyright enforcement policy in deciding how to repress their populations.  There is a wide gulf between hitting a country-specific “Internet Kill Switch” to knock out social networking functionality and blocking access to particular URLs dedicated to infringing activity.

So what can be done to address the challenges of accommodating Internet freedom, freedom of expression, and effective copyright protection in the Internet Age?  Due to the near instantaneous speed at which digital information can be transmitted today, copyright enforcement must be swift and coordinated to be effective.  Therein lies the rub.  Due process requires time.  Expanding the attorney general’s enforcement tools – while expediting notice and judicial process – enables more rapid response to websites that violate U.S. copyright law.  It also adds the element of prosecutorial discretion.  But it opens up the risk of political influence.  Thus, any law enhancing public enforcement power must provide for transparency, surgical precision, accountability, mechanisms for promptly correcting mistakes, and effective recompense for false shutdowns.  Figuring out this balance will not be easy, but it is important to explore new strategies.

Failure to take on this challenge poses the greater long-term threat to democracy, freedom of expression, and creativity.  The United States can promote these values by developing responsible and effective tools for policing Internet piracy.  Senator Wyden should join that discourse by offering constructive suggestions for improving COICA or real alternatives.  The issues raised by COICA deserve serious attention.  Playing the “Egypt card” generates far more heat than light.

Comments From Our Readers

H.E. Colin Peter Palmer: The internet – as we know it today – is still (believe or not) in its infant stage. Myraid of ongoing experiments by tec-savvy and non-tech savvy (surfers  etc). Anti-Piracy must give just a little leeway provided there no inevitable loss of value of any net content.