BitTorrent is to stealing movies what “bolt-cutters are to stealing bicycles”

The Authors Guild really doesn't like piracy. Guild president Scott Turow, a best-selling author of legal thrillers, today summoned his powers to tell Congress:

• "BitTorrent is to stealing movies, TV shows, music, videogames, and now books what bolt-cutters are to stealing bicycles."
• "It’s as if shopkeepers in some strange land were compelled to operate with wide-open side doors that would-be customers can sneak out of with impunity, arms laden with goods. In that bizarre place, an ever-growing array of businesses that profit only if the side exit is used eagerly assist the would-be customers, leaving the shopkeeper with only one thing to offer paying customers: the dignity of exiting through the front door."
• "Piracy has all but dismantled our recorded music industry. Any business plan in the music industry must now take into account that piracy is the rule, not the exception."
• "The Digital Millennium Copyright Act's 'safe harbor' for online service providers has turned out to be an exploitable gold mine for unscrupulous online enterprises."

And Turow was just one of five speakers offering testimony.

Going rogue

Today's Senate Judiciary Committee hearing was all about COICA, the Combating Online Infringement and Counterfeits Act. The bill would give the government legal tools to blacklist a "rogue" website from the Internet's Domain Name System, ban credit card companies from processing US payments to the site, and forbid US-based online ad networks from working with the site. It even directs the government to keep a list of suspect sites, even though no evidence has been presented against them in court.

Everyone loves the idea. Democrats love the idea (well, except for Sen. Ron Wyden (D-OR), who said it was "like using a bunker-busting cluster bomb when what you really need is a precision-guided missile"). Republicans love the idea. And rightsholders really love the idea.

In fact, they have a few suggestions of their own. Turow wants to cripple the "safe harbors" that protect ISPs and websites from liability in the actions of their users. One of his improvements to COICA would "remove the DMCA safe harbors for online and Internet service providers that provide routine access to online file-sharing service providers that have not registered an agent for service of process for copyright infringement actions and for which the Copyright Office has received at least 50 DMCA take-down notices."

In other words, Google could be sued for returning infringing results from The Pirate Bay. In fact, every file-sharing site in the world would have to comply with US law or risk being blackballed from Google, Bing, Verizon, Comcast, and AT&T (who aren't about to risk billions of dollars in potential legal exposure just to provide access to such foreign sites).

Rosetta Stone, the makers of foreign language learning software, wants to go much further. They doubt (with justification) that the government is really going to expend as much effort as they want busting small counterfeit shops on the Web, so Rosetta Stone wants to open COICA's Internet censorship regime to private actors.

If adopted, this idea would mean any private company could "bring to the courts evidence that would allow the courts to determine if certain sites meet the bill’s definition and order the remedies contained in the bill." When it comes to foreign websites, the target of COICA, most of these judicial hearings would likely be one-sided, with only the rightsholder evidence considered.

Even sites already declared legal in other countries—such as Spain's Rojadirecta—could suddenly find themselves curtailed from ad networks and credit card processors, and their domains blocked in the US.

Verizon, at least, thought this a terrible idea. "Private plaintiffs, unlike the [Department of Justice], are acting in their own interests and are far less likely to weigh the costs that their enforcement requests impose on third parties and, more broadly, US national interests in promoting a global Internet. Allowing private litigants to seek judicial orders restricting access to publicly available websites elevates the risk of over-broad implementation of domain name restrictions."

The company stressed that its concerns weren't theoretical, either, pointing to the huge number of P2P porn subpoenas it has been deluged with over the past year.

Private parties seeking the identity of Internet subscribers have, at times, swamped the capability of certain ISPs to respond to lawful requests. Recently, for example, plaintiffs in a somewhat different but related context subpoenaed the identities of nearly ten thousand Internet subscribers from multiple ISPs, seeking to identify the names of alleged peer-to-peer infringers of certain movie titles. This mass copyright suit swamped the capacity of certain third party ISPs who were subpoenaed to respond, and required those ISPs in some cases to seek protective orders to deal with the extraordinary numbers of IP lookups they were asked to perform.

The Consumer Electronics Association also issued a statement today worrying about COICA, which is quite broadly written. "By targeting any site that could ‘enable’ or ‘facilitate copyright infringement,’ [COICA] would erode the Supreme Court’s landmark Betamax decision that protects technology products with substantial non-infringing uses," CEA warned.