Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet (40 page)

Minutes later, Lamar Smith would do the same, postponing House activity. Though talk the bills might be revived would linger on for weeks, SOPA and PIPA were finally dead. As I was walking down the sidewalk on the way to the office, I got an email with the news. I immediately opened up Twitter and tapped, “Internet 1, Congress 0.”
Politico.com
would use this tweet as their main headline that day.

Rep. Zoe Lofgren was one of the few early opponents of SOPA/PIPA in Congress. She was rewarded for her opposition with starring roles in amusing memes like the one above.

Congressmember Zoe Lofgren represents California’s 16th congressional district, serving since 1995. She is a member of the Democratic Party. She is a longstanding leader on matters of technology policy and was an early and vocal opponent of SOPA and related legislation
.

In the latter half of 2011, passage of the Stop Online Piracy Act (SOPA) legislation seemed certain, despite my opposition and the opposition of a few other Members of Congress. Yet by January 2012, Internet activists were popping the champagne to celebrate the end of what was probably the greatest threat to online free speech and an open Internet ever seriously considered by Congress. What happened?

I was one of the few who saw the threat coming long before the proposal became widely known; I worked for many months on efforts to stop the bill. In the end, the successful effort to stop SOPA, with millions of people participating, was a remarkable moment in U.S. political history. Will its legacy be a path forward for ensuring Internet-related innovation and economic growth continue? Only if we work to make it so. The job is by no means over.

I’ve represented areas of Silicon Valley as a Member of Congress since 1995. In those years in the House, I’ve tried to ensure that copyright enforcement does not come at the expense of technology, innovation, or privacy and free speech rights. This has become even more important as the Internet developed and became a part of our daily lives.

Championing technology and free speech when considering copyright in the digital age can often be a lonely position in Congress. In fact, for 16 years on the House Judiciary Committee, I found myself with only one reliable ally there in this effort, Congressman Rick Boucher (D-VA). Then in 2010 he was defeated by a conservative Republican.

Congress obviously can’t create technology, but the laws we establish can help foster innovation, growth, and investment in research. It can empower and spur entrepreneurs to create new industries. Laws can determine how technology is permitted to develop. They can, if ill-considered, also put the brakes on all of these desirable matters.

For instance, at one time the question was whether to treat “cached” content used to speed up Internet browsing as a copy requiring permission and payment for use under copyright law. At first I thought this was some sort of joke, but it was an actual, although uninformed, proposal. Fortunately, this provision was not included in the Digital Millennium Copyright Act (DMCA) which President Bill Clinton signed into law in 1998.

To understand SOPA, it’s important to understand the landmark DMCA legislation. One critical provision of the DMCA is its safe harbor, notice, and takedown provisions. The basic idea is that web sites, Internet service providers, search engines, social networks and the like aren’t liable under copyright law for infringement by third parties—unless they have been notified by the copyright owner and refused to take down the infringing material.

Although these DMCA provisions were crafted when dial-up was the norm, a cell phone could not access the web, and a social network was The Well, not Facebook, they proved to be essential. Had this framework not been in place, it is hard to imagine that the technology we now take for granted could have been developed. Venture capital is shy about investing when the expected return on investment is threatened by money damages and endless copyright litigation over the actions of third parties who can’t be controlled.

After the DCMA, there was an explosion of new technologies, products, and services. With these innovations came a hunger for more content. The technological changes upended existing business models and kicked off a transition period where new and traditional industries are trying to adjust to each other and locate their place in our economy, culture, and regulatory system. SOPA was one product of this transitional angst, reflecting primarily the effort of older industries dependent on selling content to obtain protection at any cost from insurgent technologies that were upending their old business models.

In addition to protecting free speech, the First Amendment also protects the right of people to “petition” their government. Over the decades, content owners have vigorously pursued this right, seeking wide ranging copyright enforcement laws that have often seemed to lack any concern about the impact on technological development.

The movie studios and record labels have every right to lobby Congress for what they think is in their interests. And they’ve been smart in reaching out to other, less interested parties, like the Chamber of Commerce and the AFL-CIO. By creating broad coalitions with groups not normally known to work together, expansive measures like SOPA have been pitched to both Congress and the public alike as “mom and apple pie” legislation that “everyone” is for.

In fact, I agree that artists and innovators deserve to be paid for their work. But one-sided arguments typically don’t lead to good and balanced legislation. And for most of the last 18 years that has typically been the case when it comes to expanding copyright enforcement.

Technology companies, which might be expected to speak up for a free Internet, often had other fish to fry. Non-profit groups often gave thoughtful analyses, but did not bring much large-scale public support with their arguments. And of course, neither of these had the political clout that studios and labels had built up over the decades. While young technology companies were still gaining political awareness, movie studios and recording labels had decades of experience when it came to understanding and navigating Washington.

In the fall of 2010, after the midterm elections when Democrats lost the majority in the House of Representatives, it looked to me like the copyright
maximalists would be going for broke with a new legislative proposal that threatened online innovation, privacy and free speech rights. SOPA’s predecessor, the Combating Online Infringement and Counterfeits Act (COICA), had been introduced by Senator Patrick Leahy (D-VT). I was an early and outspoken critic, especially of the Senate Judiciary Committee for rushing it forward.

COICA was a clear signal of where this was heading. Forces were aligning to push sweeping legislation that could imperil the technical workings of the Internet, threaten the privacy and free speech rights of Internet users, and threaten technology innovation by upending the framework established by the DMCA. Behind the scenes, I pressed a key democratic proponent to hold off on introducing a House version of COICA while we still held control of Congress. By early 2011, however, Republicans were in charge.

Starting early in 2011, in conversations with my colleagues, in hearings, and speeches I spoke out against the scheme embodied in COICA. Privately, I began contacting technology companies to urge them to get involved. Throughout March of 2011, I warned of a larger impending battle over online copyright. Despite these efforts, few people seemed to see the immediacy of the threat. Even fewer in Congress shared my point of view. Senator Ron Wyden (D-OR) and Congressman Jared Polis (D-CO) were some who did, and I met with them to discuss how to oppose the rumored new legislation.

The effort to pass the SOPA/PIPA legislation tracked prior road maps used by what my friend Senator Wyden lightheartedly dubbed “Big Content.” Their game plan was to create momentum by lining up both business and labor allies, and support from both Republicans and Democrats. The costs of infringement were emphasized and sometimes exaggerated while the costs of crippling technological innovation were ignored. There was an almost complete unwillingness to solicit savvy technological input.

So it came as no surprise when the first hearing on “online parasites” in March included testimony from the motion picture studios endorsing the need for legislation. The issue was soon reinforced by domain seizures through U.S. Immigration and Customs Enforcement’s (ICE) “Operation In Our Sites” of websites accused of infringing copyrights. Some of these seizures, including the seizure of
Dajaz1.com
, appeared to violate the rights of the site owner and the free speech rights of users.

April brought another hearing on “online parasites.” In meetings with tech CEOs in Silicon Valley and tech leaders gathered in Washington, D.C., I continued to urge engagement in the coming battle over copyright enforcement. By the time I spoke in May to a brown bag lunch crowd at Mozilla in Mountain View, California, the Protecting IP Act (PIPA) had been introduced by Senator Leahy. Momentum was building.

There seemed to be growing interest from Internet activists. I hope in part this was because of my efforts, but I believe it may also have resulted from the publicity created by the ICE raids on Internet web sites. Organizing takes time and effort and sometimes, it can come too late. I continued to urge the need for action, making my case to tech companies as well as activists at conferences and
events. In June, along with some tech executives, I made an effort to discuss alternatives to PIPA with some proponents, but despite sincere intentions by all, no real progress was made.

By the fall of 2011, “Big Content’s” forces were advancing on all fronts, culminating in SOPA’s introduction by Congressman Lamar Smith (R-TX), Chairman of the House Judiciary Committee. I had warned my colleagues in private discussions that SOPA was one-sided and lacked any meaningful input from the tech community, and I pressed for a delay so it could be better balanced. Democrats no longer controlled the House and these requests were unavailing.

With legislation in both the House and Senate, the situation appeared favorable for steam rolling the bills through Congress. Because proponents “had the votes” there seemed little interest in negotiating to fix problems.

There is a saying that politics makes strange bedfellows. I don’t agree with Congressmen Darrell Issa (R-CA) and Jason Chaffetz (R-UT) on many things but we could agree on SOPA/PIPA. I was happy to join forces with these fellow members of the House Judiciary Committee to make an effort to derail the oncoming freight train that SOPA had become. We were joined by Congressman Polis who would soon be appointed to the Judiciary Committee.

In early November we sent a joint letter to our colleagues expressing the first bipartisan opposition to SOPA. However, we knew more than opposition was needed and so began discussions toward creating an alternative, ultimately the OPEN Act introduced by Senator Ron Wyden and Congressman Darrell Issa in December.

My colleague, Congresswoman Anna Eshoo (D-CA), doesn’t serve on the Judiciary Committee, but she was eager to help in these efforts. She helped craft a letter to be sent to the Judiciary Committee and we set out to gather bipartisan signatures. Congressman Ron Paul (R-TX) was running for President and consequently was often away from the House. But I found him one evening while he was there for votes. I asked him to sign the letter and he took it saying he would “look at it.” I was terrifically pleased when a short time later he found me on the House floor to tell me he would sign. It was a good start to reaching across the political spectrum in building our opposition to SOPA.

With the SOPA/PIPA freight train rolling through Congress on a fast track, we needed immediate action. Only a substantial public outcry could delay or stop this juggernaut. I huddled again with Representatives Eshoo and Polis and key tech advocates to organize opposition. In speeches, meetings and conference calls, I was telling Internet leaders and activists alike that the only way to derail SOPA/PIPA was to “melt the phone lines” with calls to Congress.

Despite all the advances in connecting with representatives and senators, emails and online petitions just don’t get the same immediate attention from most Members of Congress that is created by a massive inpouring of phone calls. Petitions get noticed too, but elected officials know that a person who takes the time to call is also likely to take the time to walk into a voting booth.

A few social network sites made an initial effort to generate to phone calls in opposition, but they fell short. There were not enough phone calls, and many
calls were made to the district offices of Members of Congress—when policy staffs and Members were in Washington. Hardly anyone noticed.

But the effort was getting attention from tech bloggers and some online media sources. Sites like Techdirt were covering the issue persistently. Cyber security experts were speaking out against SOPA. By the time I participated one November Saturday in a conference call organized by Mozilla, tech companies, non-profits, and grassroots groups were coalescing to use their platforms to organize calls to Congress. It was clear SOPA was being taken seriously as the threat it was. But would a large enough effort come in time?