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Summary:

Judging by today’s hearings, some members of Congress are willing to consider radical measures to rid the internet of “rogue” websites accus…

Judging by today’s hearings, some members of Congress are willing to consider radical measures to rid the internet of “rogue” websites accused of piracy. Among them: getting search engines like Google (NSDQ: GOOG) to tweak their search results, and ordering ISPs to block certain websites from U.S. viewers altogether. Until several months ago, Congress had never even discussed taking steps like these. The fact that they are now on the table is probably a function of several factors, including aggressive lobbying by the entertainment industry and a proliferation of illegal content online.

Congress first started considering the idea of allowing federal law enforcement to block websites in September, when Sen. Patrick Leahy introduced the controversial COICA bill in the last Congress. Now the House of Representatives is considering a similar proposal, although no bill has yet been introduced.

That debate is taking place against a backdrop in which the government has already begun getting more aggressive with piracy. Since the middle of last year, immigration and customs officials have seized more than 100 domain names of websites they claim were flouting copyright and trademark laws.

Highlights from the hearing included:

Hollywood spokesman describes a “shadow economy” of illicit content. Frederick Huntsberry, the chief operating officer of Paramount Pictures, described how just four or five clicks from a simple Google search consumers are likely to come into contact with websites that stream content from Paramount and others without permission. Huntsberry said the big problem is the flourishing “cyberlocker” sites, which are encouraging users to upload movies and other content by offering rewards. Huntsberry estimated that one site alone, MegaUpload, earns annual profit between $40 million and $300 million.

Congress needs to pass a law to “level the playing field” between legitimate providers and pirate sites, said Huntsberry. “We have reached the limits of self-help,” he said, noting that Paramount sent over 40 million “infringement notices” last year, but it didn’t dent piracy much. (It isn’t clear exactly what Huntsberry meant by an “infringement notice,” since later in the hearing he said Paramount sent 1.5 million copyright takedown notices.) Piracy is stealing American jobs and tax revenue, he added.

Sympathy for the cause but frustration at lack of detail. At least one Congressman was clearly sympathetic to Huntsberry’s overall cause but annoyed by the lack of detail in the proposal. Huntsberry and other witnesses should have brought a specific proposal to the table telling Congress what it should do, said Rep. John Conyers (D-Michigan). “I’m disappointed in all the witnesses,” Conyers said.

“We need the ability for [law enforcement] officers to go after rogue websites,” said Huntsberry. “It is today impossible to even discover who the owners are of these sites, or where they’re served.”

Another witness, analyst Daniel Castro of The Information Technology & Innovation Foundation, gave Conyers some of the specifics he was looking for: Congress should simply create blacklist of sites, then force ISPs to block them and tell search engines to remove them from lists of search results. “The federal government should work with industry to create a master list of all these sites,” said Castro. “You could require service providers and financial networks to stop doing business with these sites.”

Ready to tweak search results? In his presentation, Huntsberry showed how simple searches for normal search terms-like “stream” or “watch movies online” — still brought up many websites the entertainment industry considers “rogue” sites. That clearly had an impact on the panel, and a few different members, including Rep. Tom Reed (R-N.Y.) and Rep. Sandy Adams (R-Fla.), asked about the possibility of giving search prioritization to “authorized” media options like Netflix (NSDQ: NFLX). For example, typing a search for “stream movies” in Google makes the top link a site called Solar Movies, which Huntsberry singled out as a site full of links to pirated content, including just-released films like Paramount’s The Adjustment Bureau.

Most of the panel seemed to support the idea of cracking down on ‘rogue’ websites, but a few had criticisms. Rep. Zoe Lofgren (D-San Jose) again emerged as one of the few Congressional opponents of a simplified system for taking down websites accused of piracy. Earlier this month, Lofgren criticizedthe government’s seizures of websites; today, Lofgren expressed concern that a website-takedown law wouldn’t leave room for fair use or other legitimate uses of copyright material. And she also implied she was concerned about legislators ordering around search engines and ISPs. “If we move into designing technology by the U.S. government, that, too, will move offshore,” she said.

Rep. Mel Watt (D-N.C.) had some concerns about what kind of due process should be involved with removing a website. Both Huntsberry and Castro said that it wasn’t important to let the accused address a judge before their websites were taken; allowing them to come back a day or two after the seizure took place is good enough, they said. Watt was clearly uncomfortable with that proposal. “If you look at physical goods, they are seized without court review,” noted Castro. “I wasn’t too hot on that process, either,” responded Watt. Even if the goods are unlawful, the accused should have an opportunity to make their case before their property is taken, Watt said.

Acting Regitrar of Copyright Maria Pallante testified that shutting down a website “dedicated to infringement” would not violate the First Amendment. But “even the worst of the worst should receive notice,” she said, and relief provided to copyright owners should be “narrowly tailored.” Pallante didn’t take a position on whether the government should tweak search results, saying only that it’s “a harder question.”

  1. Interesting article, although I’m not sure how to feel about google’s algorithm now that it has become clear that they incorporate whitelist & exception lists.

    http://blog.hudsonhorizons.com/Article/Google-Admits-to-Whitelists-Exception-Lists-in-Google-Algorithm.htm

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  2. So Congress — led by Republicans — want to *increase* government oversight of the internet and private search companies?

    Remember when Republicans wanted smaller government? Me neither.

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  3. samuelpeterson Tuesday, March 15, 2011

    I think that everybody agrees that copyright infringement should be fought, but as Rep. Zoe Lofgren (D-San Jose) and Rep. Mel Watts (D-N.C.) mention there has to be some control before a website is seized. There are many cases where a site is operating legally in their own jurisdiction that might infringe U.S. laws, for the simple reason of being online, even if the U.S. market isn’t their target. It would only be fair to advise those people to either block the U.S. users from reaching their site (several guides available online on how to do this) or at least let them know what should be fixed. If they simply start taking websites offline without any proper process, the only result they’ll get is webmasters taking their domains and servers to non U.S. friendly countries.

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  4. 1) Such a measure would be extreme, and possibly unconstitutional in terms of free speech. 2) It wouldn’t prevent alternative, non-US based search engines from providing links to those sites anyway, and even if the law managed to censor those, they’d pop up faster than they could be shut down. For proof of that last point, see the results of attempts to take down The Pirate Bay and other similar sites.

    The content industry should quit it’s silly enforcement path and focus on offering what consumers actually want: unfettered, rapidly available content they can use however they see fit.

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  5. i think it will not be done.

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  6. To be quite honest I do not know why the US Government hasn’t intervened sooner, and with more vehemence. With the amount of control they exercise over the other industries, the question has to be asked why they have let online piracy continue unabated for so long. Not that I’m complaining of course.

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