Draft Framework for Policy Engagement – Why, When, and How

Over the past few years we’ve become more engaged in public policy issues driven by proposed legislative and regulatory actions that threaten core tenants of the open web. These threats are global in nature and manifest themselves in national legislative bodies, judicial venues, trade organizations, and international treaty setting bodies among others. After engaging in a number of policy issues such as SOPA, ACTA, DNT, jailbreaking, and further seeing a forecast of “more rain” we set out to craft a draft framework that could guide our approach on these issues.

The framework is not meant to be exhaustive nor be a detailed roadmap,  but rather directional in nature.  Hopefully it’s a level set and creates a common point of reference for our community. As time goes on, we’ll naturally iterate and develop the ideas further. At this point we want to test it, incorporate feedback, and see if the approach makes sense. Please add any comments to the governance thread here.

Some key assumptions that inform the framework are:
•    Tech policy can help or hurt the web
•    Key attributes of the open web need to be nurtured and protected
•    All tech policy issues are not the same
•    We can make a difference
•    The nature of the threat will dictate different kinds of responses
•    We remain a project that is primarily focused on building stuff
•    Don’t build what already exists

The framework reflects our current thinking and should answers key questions like:
•    What’s the goal? What are we trying to protect?
•    Can we make a difference?
•    Why do we get involved?
•    When do we get involved and when don’t we?
•    How do we engage?

If you want more color on some of these ideas, take a look at the presentations below where we have begun discussing the broader notions of threats to the open web.

* Open Forum Europe summit presentation by Mitchell Baker
* World Economic Forum presentation by Gary Kovacs
* FISL 2012 presentation “powerful v. empowered” by Harvey Anderson

the Open Act, What others are saying…

Although it’s great to have a POV, it’s also good to hear what the other side is saying from time to time. This is a handout going around the Hill distributed by pro-sopa interests.

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THE OPEN ACT GOOD FOR GOOGLE BAD FOR COPYRIGHT HOLDERS

Everyone agrees that foreign criminal Internet operators who steal American products and jobs must be stopped. No legitimate Internet service should profit from illegal activity or lead its users to illegal sites. The OPEN Act does nothing to stop this behavior and may even make the problem worse. It does not establish a workable framework, standards or remedies. It is not supported by those it purports to protect. It needs to be scrapped. Stakeholders and Congress need to start over with a fresh look at solving this problem.

Sets dangerous precedents with impossibly high, useless standards. Even a site that openly acknowledges it is entirely composed of illegal material is exempt, as long as the material is added or used by others and not the site owner or operator. This excuses willful blindness and outright complicity in illegal activity. In addition, anyone who takes down one illegal file is immune, even if it’s simply reposted minutes later. Couple these with the virtually impossible requirement to prove that the owner or operator of an elusive foreign site acted willfully, and the OPEN Act remains closed to nearly any claim, but serves as an excuse that something is being done.

Prohibits small business victims from seeking relief. OPEN Act claimants would be required to hire a lawyer with International Trade Commission expertise (among the most expensive bars in the country), come to D.C. to pursue the claim, and post a bond for the issuance of a cease and desist order (that they may not get back). This puts justice out of reach for small business American victims of IP theft.

Allows indefinite delays while the market for American works are “scooped” by foreign criminals. The OPEN Act provides no timing for initiation of an investigation, if an investigation is granted at all. A claim could languish for months or years before any action is taken. And, while the bill requires the ITC to rule on an injunction within 30 days after the start of any investigation, there is absolutely no timing given for the ruling on a temporary cease and desist order – what the bill ironically calls “expedited consideration.” Add on provisions for endless submissions by parties such as Google, hearings, etc., and relief is elusive for victims suffering while foreign site operators are allowed to continue their illegal activity.

Offers an empty toolbox. Typically, when illegal activity is found, the law provides for action against the activity itself. OPEN prohibits action against the site, and doesn’t allow the ITC’s standard exclusion order (available in other ITC claims). OPEN takes away the very tools the ITC has been granted. The relief is so limited it applies only to ad networks that directly share ad revenues with the criminal site (rendering more complicated revenue relationships immune) and only payment processors that transact with customers in the U.S. (allowing transactions for foreign rogue sites to continue with international customers by U.S. providers). And, of course, the White House can throw out an order for any reason, trumping an administrative decision with a political one.

Makes compliance rare. The OPEN Act actually prohibits claimants from seeking a compliance order from the ITC. Instead, it allows only the Attorney General of the U.S. to bring an action against anyone who ignores an order. The victim is left powerless to ensure compliance even if they win.

It’s anticompetitive. The bill’s narrow view of financial transaction provider and Internet advertising service conveniently exempt services such as Google Wallet and Google’s Doubleclick, but include Visa and MasterCard. And, further benefitting Google which has 90% of the search market on the Internet, the bill completely exempts search engines from any responsibility.

The OPEN Act is an excuse, not an answer.

SOPA – the Stop Online Piracy Act – Is It Really Dangerous?

Recently, the Stop Online Piracy Act, 112 HR 3261 (SOPA) was introduced as a bill in the US House of Representatives. This is the House companion to the Senate Protect-IP Act that drew considerable opposition from the tech and First Amendment quarters, so many of the issues remain same. The intent of SOPA is to help combat online piracy. This is a laudable goal; however, the unintended consequences are scary for intermediaries, websites with user generated content, DNS providers, and those of us who rely on the Internet as a vibrant and rich communications network.

SOPA grants IP claimants a lot more power than they currently have to remove allegedly infringing content and expands the scope of people who may be liable by giving:

  • the Attorney General the power to compel companies that maintain DNS look-ups to change the tables, also known as domain name filtering. See analysis by Larry Downes.

The problem is that these are powerful remedies made available based upon unproven assertions and little due process. Imagine you’re a website operator, under SOPA you can get your Paypal payment processing services cut-off merely because someone claimed there’s infringing content or apps on your site. Faced with that choice, it’s an easy decision, remove the content early and often just to be safe.

IP rights are certainly important and need to be respected on the Internet, and there is a very real piracy problem, but SOPA threatens an essential attribute of the Internet – its ability to easily share information without friction and permissions. This doesn’t mean that the Internet should be a lawless expanse void of law or consequences either. The challenge is that SOPA exposes intermediaries to undue financial and legal liability for content in a way that will undoubtedly chill the free flow of content and ideas embodied in both software and media. In addition, the language in the bill is ambiguous leaving it open to abuse by plaintiffs who have already demonstrated aggressive interpretations of the existing DMCA framework. This is why there is so much concern that SOPA represents a real and dangerous threat to the Internet.

Some describe this debate in polemic terms, as Hollywood vs. the Internet, where the Internet slowly becomes managed by dominant media interests. Others have focused on the deleterious impact on human rights. Perhaps Masterswitch writer Tim Wu would see this as part of a larger pattern of how open information ecosystems become closed over time. US House Representative Zoe Lofgren, representing voters in Silicon Valley, warns that this “would mean the end of the Internet as we know it.” It could also just be bad legislation.

If SOPA becomes law, few think it will actually solve the problem. For example, it seems clear that blocking domains is not an effective means to combat piracy because domains can be redirected so easily. A while back Homeland Security asked Mozilla to take-down an add-on without a court order or a finding of liability. Under a SOPA regime, it appears the same incident would allow the putative plaintiffs to petition the Attorney General to issue an injunction compelling take-down based only on a specious claim of contributory infringement. Oddly SOPA makes one really appreciate the DMCA.

Many in the tech and policy communities are organizing to oppose SOPA. What’s most important is that Congress hears from everyone on this, whatever their view.  Plus it’s Tuesday November 8th -voting day- so let your voice be heard. If you want to let Congress know that you oppose the legislation EFF and Public Knowledge have sites set up to easily send your message to Congress.

Additional links to the bill and other commentary can be found below.

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